Kirke & Kirke
[2023] FedCFamC1F 827
•28 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kirke & Kirke [2023] FedCFamC1F 827
File number: BRC 5690 of 2023 Judgment of: BRASCH J Date of judgment: 28 September 2023 Catchwords: FAMILY LAW –– CRITICAL INCIDENT LIST – Where mother and father incarcerated – Where children living with the paternal grandparents – Where major long-term decisions were required on an urgent basis – Where the paternal grandmother sought parental responsibility for the children – Where interim orders had been made to allow the paternal grandmother to access service providers for the children – Where the Department has no concerns about the children living with the paternal grandparents –Where mother agreed to final orders being made – Where father has not engaged in proceedings – Final orders made. Legislation: Family Law Act1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(2)(b), 60CC(3), 61DA, 65D(1), 65DAB
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.38, 10.13
Cases cited: Masson & Parsons (2019) 266 CLR 554; [2019] HCA 21
Tibb & Sheehan (2018) 58 Fam LR 351; [2018] FamCAFC 142
Division: Division 1 First Instance Number of paragraphs: 56 Date of hearing: 27 September 2023 Place: Sydney Solicitor for the Applicant: Pippa Colman & Associates Law Practice The First Respondent: Litigant in person (did not participate) The Second Respondent: Litigant in person ORDERS
BRC 5690 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KIRKE
Applicant
AND: MR KIRKE
First Respondent
MS FULLERTON
Second Respondent
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
27 SEPTEMBER 2023
THE COURT ORDERS THAT:
Live With
1.That the children X born 2012 and Y born 2013 live with the applicant paternal grandmother.
Parental Responsibility
2.That parental responsibility be allocated to the applicant for all major long term decisions related to the children, including:
(a)The children’s education (both current and future);
(b)The children’s religious and cultural upbringing;
(c)The children’s health;
(d)Requesting that Medicare issue a card/s for the children and claiming Medicare benefits for the children;
(e)Dealing with the Department of Foreign Affairs and Trade, Passport offices or Visa providers; and
(f)Requesting a copy of the children’s birth certificate; and
(g)Dealing with NDIS and making any applications required.
3.That the applicant have responsibility for all day-to-day decisions with respect to the children.
4.That pursuant to s 121 of the Family Law Act 1975, the applicant be granted leave to publish a copy of these Orders to all service providers for the children, including but not limited to the children’s school, treating medical practitioners, any other doctors, therapists, counsellors, government departments, health insurer, passport and visa providers, or, for securing any financial support for the children.
5.That these Orders are authority for the applicant to schedule and consent to treatment, therapy, schooling, programs, services and the like for the children, and to give and receive such information from service providers as a parent would ordinarily receive.
6.In the event any wording in this Order constrains or otherwise fetters the applicant’s ability to deal with service providers for the children, the applicant has liberty to approach chambers by email (with an affidavit) via (…@...) under r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) seeking the relevant amendment/s.
THE COURT NOTES:
A.The mother appeared at today’s court hearing and indicated she wishes to develop and renew a relationship with the children.
B.The mother however does appreciate that having finality is important for the children.
C.The mother intends to file a new parenting application when she is no longer incarcerated, setting out the steps she has taken to rehabilitate herself and, explain to the Court the material change in circumstances since she was in custody.
D.That pursuant to s 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 “Parenting Orders – obligations, consequences and who can help” 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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BRASCH J:
BACKGROUND
This is an application concerning two children X born 2012 and Y born 2013 (“the children”).
The applicant in these proceedings is the paternal grandmother Ms Kirke born in 1959 (“the paternal grandmother”). The paternal grandmother lives with the children’s paternal grandfather Mr B born in 1959 (“the paternal grandfather”).
The applicant paternal grandmother’s son is Mr Kirke born in 1978, that is the children’s father (“the father”). The children’s mother is Ms Kirke born in 1986 (“the mother”).
The mother and father separated in or around 2017 and at that time the children relocated to live with their mother. The paternal grandmother deposed that in or around 2018 the mother “lapsed into drug misuse and was incarcerated” (Affidavit of Ms Kirke filed 8 May 2023, paragraph 8). Following this, the children came into the primary care of the father and his partner, whose two children also lived with them.
In 2022, the father’s partner gave birth to their first child together. They are now separated.
In November 2022, the father’s former partner, raised concerns with the paternal grandmother about the children’s safety in the father’s care due to his drug use. The paternal grandmother deposed that since this time the children have resided with her with the exception of three days spent with the father under the supervision of his former partner.
In early 2023, the father attended the paternal grandmother and grandfather’s home and attempted to take the children. When the paternal grandfather refused to let the father take the children and the father refused to leave, the police were called. The paternal grandmother and grandfather made an application for a Domestic Violence Order. The protection order was subsequently varied in early 2023 to include the children.
In early 2023, the father was involved in an incident resulting in his incarceration. The paternal grandmother deposed the incident involved the father “assaulting [the paternal grandfather], stealing [the paternal grandfather’s] motor vehicle, crashing into two police vehicles and running them off the road, crashing into another vehicle and threatening them with a knife” (Affidavit of Ms Kirke filed 8 May 2023, paragraph 18).
On 8 May 2023, the paternal grandmother filed an Initiating Application. The matter first came before me on 10 May 2023. It came before me in the Critical Incident List. At that hearing, I was satisfied urgent major long-term decisions were required for the children, particularly with respect to a surgery for Y and to enable the paternal grandmother to access counselling for X. On that occasion I asked a co-located officer from the Department of Child Safety, Seniors and Disability Services (“the Department”) to appear as a friend of the Court. The co-located officer helpfully provided the Court with a history of the Department’s involvement with the children and the parents dating back to October 2012, but most importantly were able to assure me the Department held no concerns with the children remaining with the paternal grandparents. As such, I made interim orders that the children live with the paternal grandparents, they have parental responsibility for major long-term decisions and have liberty to provide the orders to service providers for the children.
Neither the mother or father attended on 10 May 2023 and as such I made orders for the matter to be brought to their attention. I will say more about service shortly.
I indicated at that May return that on the next occasion, if I was satisfied the matter had been brought to their attention and they indicated they do not want to be involved, and, if the Department had no further reports about the children or applicants, then, I would consider making final orders.
I have been provided with three further reports from the Department, all which indicated there has been no involvement or reports received by the Department in relation to X and Y since the information provided in May 2023.
Material
The applicant paternal grandmother relied upon the following documents:
·Initiating Application filed 8 May 2023;
·Affidavit of Ms Kirke filed 8 May 2023;
·Affidavit – Non-Filing of Family Dispute Resolution Certificate filed 8 May 2023;
·Notice of child abuse, family violence or risk filed 8 May 2023;
·Affidavit of Ms C filed 11 July 2023;
·Acknowledgement of Service filed 11 July 2023; and
·Affidavit of Jessica Elizabeth Popple filed 18 August 2023.
The father has not filed any material or participated in any way.
The mother relied upon an affidavit, a Response to Initiating Application, a one page reply and letters from C Support Service and D Support Service and a Notice of Risk, all of which she posted from her prison to the court and the paternal grandmother’s solicitor. The documents sent to the court had not arrived by the time of the hearing yesterday, but the paternal grandmother’s solicitors usefully emailed them to Chambers.
Service on the parents
As already said, both parents are currently incarcerated. On 10 May 2023 I made orders that required the paternal grandmother, through her solicitors, to serve a copy of her Initiating Application, affidavit of Notice of child abuse, family violence or risk on the mother and the father at their respective prisons.
I then made the following order:
11.In the event either the father or the mother wish to be heard in these proceedings, then within 28 days of receiving the material at Order 4 and 5 respectively, they are to each file and serve:
(a)a Response to an Initiating Application setting out with precision the interim and final orders sought;
(b) a supporting affidavit of no more than 10 pages; and
(c) a Notice of Child Abuse, Family Violence or Risk; but
nothing in these orders should be taken by either the mother or the father that they are required to participate in these proceedings.
In the event no material was filed by the mother or father, I required the paternal grandmother to file and serve an affidavit indicating how she brought the proceedings to the attention of the mother and father and any responses received to that service. The matter was then adjourned to 14 July 2023.
On 11 July 2023, the paternal grandmother’s solicitor, Ms Popple, filed an affidavit in compliance with my order. Ms Popple deposed that on 20 June 2023, she received correspondence from the mother which indicated she:
a.Is residing in [E Correctional Centre];
b.Is waiting for legal representation and intends on filing a response;
c.Encloses a statutory declaration advising that she “gives” the Grandmother temporary guardianship (of the children) whilst she is incarcerated;
d.Is seeking phone contact with the children;
e.Will be seeking Order upon her release for the children to live with her; and
f.Encloses an Acknowledgement for Service, which has been filed with this Honourable Court.
(As per the original)
(Affidavit of Jessica Elizabeth Popple filed 11 July 2023, paragraph 10)
Ms Popple went on to depose that at the time of filing her 11 July 2023 affidavit she had “not received any further correspondence from the Mother or any correspondence from the Father in these proceedings” (Affidavit of Jessica Elizabeth Popple filed 11 July 2023, paragraph 13).
When the matter came back before me on 14 July 2023, the mother still had not filed any material. However, due to the difficulties of getting legal advice and/or drafting and filing documents when in prison, I was not satisfied the mother had had an opportunity to file documents since her letter to Ms Popple dated 15 June 2023 (Annexure JEP5 to the affidavit of Jessica Elizabeth Popple filed 11 July 2023, p.150–151).
Notwithstanding the father had proffered no response, I made a further order providing an opportunity for both the mother and father to be heard in the proceedings:
1.The mother and father each have four (4) weeks from 14 July 2023 to file the following documents in relation to the matter currently before the Court:
a) a Response to an Initiating Application setting out with precision the interim and final orders sought;
b) a supporting affidavit of no more than 10 pages; and
c) a Notice of Child Abuse, Family Violence or Risk
I again made an order requiring the paternal grandmother (or her solicitor) to file an updating affidavit before the next mention setting out how the order was brought to the attention of the parents. That was filed. Contained in that was a letter from the mother asking for more time.
At the 21 August 2023 mention I raised with Ms Popple the difficulties faced by the Court where a necessary party is indicating they intend to participate but where the Court could not be satisfied they had had an opportunity to do so. I therefore made the following orders:
1.That the matter is adjourned for mention before the Honourable Justice Brasch of the Federal Circuit and Family Court of Australia (Division 1) at 3.00 pm on 27 September 2023 by Microsoft Teams.
2.It is requested the Proper Officer of the [E Correctional Centre] facilitate the mother calling into the court at the next mention, if the mother wishes to do so.
3.The Proper Officer of the [E Correctional Centre] is at liberty to contact the chambers of the Honourable Justice Brasch (via …@...) if they require any orders from the Court to facilitate the mother’s appearance.
Service
4.That service of this Order be affected by the solicitors for the Applicant sending the sealed documents to the mother via the person in charge of the [E Correctional Centre], […], in accordance with rule 2.38 of the Federal Circuit & Family Court of Australia (Family Law) Rules 2021 (Cth).
(Emphasis in original)
On 12 September 2023, correspondence was sent to my chambers attaching an email from the E Correctional Centre enclosing dial-in details to facilitate the mother attending the mention on 27 September 2023.
Yesterday afternoon, the mother appeared at the mention by telephone. In her Response the mother sought orders on an interim basis that:
1. The applicant to have Temporary sole parental responsibility for the children [X] and [Y] until the paternal mother [Ms Kirke] is released from incarceration at [E Correctional Centre]
2. Both applicant and respondant 2 to work with a family relationship center to help build and maintain a healthy relationship for the childrens best intreset
3. Both applicant and respondant 2 to enter into a IPA agreement to achieve the best outcome for the children
4. Respondant 2 would like to be given contact information from the applicant to contact the children
5. Respondant 2 wopuld like for the siblings to be able to stay in contact woith the children
(As per the original)
(Response received by the Court 27 September 2023, p.3)
On a final basis she sought:
1.The Applicant and Respondent to have equal and shared responsibilty of the Children [X] Born […] 2012 and [Y] Born […] 2013
(As per the original)
(Response received by the Court 27 September 2023, p.2)
Ultimately the mother agreed to the making of final orders yesterday afternoon. That was a child focused thing to do. It is her intention that when released from prison and rehabilitated she will bring a fresh application to ask the Court that she be able to resume a relationship with the children. It will be for another court to determine the material change of circumstance issue.
Nothing has been heard from the father despite the many opportunities provided to him.
PARENTING PROCEEDINGS – LEGAL PRINCIPLES
Part VII of the Family Law Act1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children, many of which relate to parents. Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper, subject to s 61DA and s 65DAB, which is irrelevant here. Section 60B of the Act sets out the objects and principles of Pt VII as follows:
The objects are to ensure that the best interests of children are met by:
•ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
•protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
•ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
•ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
In Masson & Parsons (2019) 266 CLR 554, their Honours, Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ noted at [8] that the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the children”.
Best Interests of the Child
Section 60CA of the Act provides that “[i]n deciding whether to make a particular parenting order in relation to the children, a court must regard the best interests of the children as the paramount consideration”.
The best interests of the child are determined by an examination of the considerations set out in s 60CC of the Act. In Tibb & Sheehan (2018) 58 Fam LR 351 at [74]–[78], the Full Court made clear that while the Court must consider each of the primary and additional considerations in s 60CC, express discussion is not necessary. The relevant considerations are determined by the way in which the parties present their cases.
The primary consideration set out in s 60CC(2) of the Act are as follows:
•the benefit to the child of having a meaningful relationship with both of the child’s parents; and
•the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2)(a) of the Act requires the Court to give greater weight to the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence: s 60CC(2)(b) of the Act.
It is obviously apparent the benefit of the children having a meaningful relationship with both their parents is one that is not possible. I have already referred to the reports from the Department in relation to the paternal grandparents and I have no concerns they pose any kind of threat, risk or harm as referred to in that subsection of the Act. To the contrary, the paternal grandparents acted in a protective manner when the need for a protection order arose for the children.
Additional considerations
I turn, then, to the additional considerations at s 60CC(3).
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
This is not a ‘views matter’ in the sense that whatever the children’s views may be, given both the mother and father are incarcerated the reality is that there are no other options for the children’s residence.
(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child);
The children have not seen the mother since 2018.
The paternal grandmother deposed to the children “hiding under the bed as they were scared” and that she was “in the room with the children, reassuring them that it was okay” when the father attended her home to take the children in early 2023 (Affidavit of Ms Fullerton filed 8 May 2023, paragraph 16). There is a current protection order against the father naming the children as protected persons preventing him from approaching the children in any place they may be.
The children are fortunate to have had the paternal grandparent’s step in as they have. The evidence before me is that the children are properly cared for by the paternal grandparents. The application was made in order to access medical treatment for Y and supports for X. I am satisfied the paternal grandmother and grandfather provide nurture, support and stability for the children.
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
From jail, it is impossible for either parent to fulfill any of these things.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
X and Y have not spent time with the mother for five years and have been in the care of the paternal grandparents since November 2022. The children have not spent time with their father since Christmas 2022. It is important that that continuity of care continue for the children after the upheavals they have previously experienced.
Before me on 27 September 2023 the mother asked for phone calls with the child. Appropriately though, she accepted I would likely need expert evidence to help me determine whether that was in the children’s best interests given a) the length of time since they have seen her, and b) what the children might make of her being in jail if they learned that.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
The practical difficulty and expense of the children communicating and seeing either parent does not arise.
(f) the capacity of: (i) each of the child's parents, to provide for the needs of the child, including emotional and intellectual needs; (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
Both parents are incarcerated for alleged anti-social and criminal conduct. That does not bode well for their capacity to parent.
It was however child focussed of the mother to agree to final orders yesterday, so the children have some finality.
Section 60CC(3)(f)(ii) concerns the capacity of any other person, including other relatives of the children. It is clear to me that the paternal grandmother is a person who has capacity to parent or, in this case, capacity to grandparent. I have no difficulty with her capacity to provide for the children’s emotional and intellectual needs.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
The maturity, sex and lifestyle background of the children is not a matter that looms.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
Section 60CC(3)(h) is not relevant.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each child's parents;
Whilst this section specifically refers to parents, I am satisfied that the paternal grandmother possesses the responsibilities of parenthood. The father has not participated from jail at all. The mother is also in jail but made a responsible decision to agree to final orders yesterday.
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter;
I have already referred to the protection order against the father. The report received from the Department prior to the 14 July 2023 hearing made mention of the Department’s continuing involvement with the mother in relation to a child to a subsequent relationship due to domestic violence perpetrated by the mother.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
This order, of course, is being made in the absence of the father, and he can take some legal advice about that if he wishes. The mother or father may well see a lawyer who can tell them about the principles in Rice & Asplund (1979) FLC 90-725. But right now, the best thing I can do for these children is bring this litigation to an end as quickly as I can.
(m) any other fact or circumstance that the court thinks is relevant.
The paternal grandmother and grandfather need to be focused on providing the supports that are needed for each of these children. That focus should not be interrupted with having to continue attending court on a regular basis. It is in the best interests of the children that I finalise the matter for all of the reasons I have given.
I will make the orders as discussed with Ms Popple earlier. I am satisfied they are in the best interests of the children. The final order I will make is an order pursuant to r 10.13 of the Rules. Should any of the wording in the final orders prove constraining, for example, if the Department of Foreign Affairs and Trade would prefer a different form of words, then I will make an order that the paternal grandmother has liberty, under the slip rule, to email my chambers copying the mother and father, if their contact details are known.
An affidavit will need to be sworn/affirmed and, ideally attach, any supporting documents, for example, the Department of Foreign Affairs and Trade indicating what the problem is with the orders as I have formulated them. I do so on the basis that the paternal grandmother does not need to be troubled by filing an Initiating Application, affidavit and all the documents that go with that, simply to amend the wording to facilitate accessing services for the children.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 28 September 2023
0