Leary & Gilbert
[2023] FedCFamC2F 736
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Leary & Gilbert [2023] FedCFamC2F 736
File number: DNC 206 of 2021 Judgment of: JUDGE YOUNG Date of judgment: 31 May 2023 Catchwords: FAMILY LAW – parenting application – where there is a history of instability in the child’s living arrangements – where there have been allegations of neglect in the mother’s care – where there has been an incident of the child sniffing solvents – where the father has not engaged with proceedings – where orders have been agreed between the mother and the Independent Children’s Lawyer. Legislation: Family Law Act1975 s60CC Division: Division 2 Family Law Number of paragraphs: 9 Date of hearing: 31 May 2023 Place: Darwin Solicitor for the Applicant: No Appearance Counsel for the Respondent: Mr Casey Solicitor for the Respondent: Hunt & Hunt Counsel for the Independent Children's Lawyer: Ms Farmer Solicitor for the Independent Children's Lawyer: AFL Withnalls Lawyers ORDERS
DNC 206 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR LEARY
ApplicantAND: MS GILBERT
RespondentINDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE YOUNG
DATE OF ORDER:
31 MAY 2023
THE COURT ORDERS:
PARENTAL RESPONSIBILITY
1.That the Mother have sole parental responsibility for the child X born in 2012 (“the child”).
2.That the Mother shall make a genuine effort to consult the Father before any major long- term decisions and notify the Father in writing within 7 days of any long-term decisions made by the Mother.
LIVE WITH / SPEND TIME WITH
3.That the child live with the Mother.
4.That the child spend time with the Father at all times as agreed between the parties and in default of agreement for the first half of all school holidays.
CHANGEOVERS
5.That unless otherwise agreed to between the parties, all changeovers shall occur at McDonalds in Town C.
COMMUNICATION
6.That the child communicate with the Father at all reasonable times by Facetime, telephone, or WhatsApp as facilitated by the Mother and the Mother shall do all acts and things to facilitate such communication, including ensure the child is provided a private and quiet location for the conversation.
7.That the parties will:
(a)keep each other informed of their current contact details including their residential and postal addresses, telephone numbers, and email address and will inform the other of any change to any of these details; and
(b)advise each other of any medical or other emergency involving either of the child whilst in their respective care.
INJUNCTIONS
8.That an injunction be granted pursuant to section 68B of the Family Law Act 1975, and that both parents are restrained from:
(a)That the Father shall not consume alcohol in excess at any time during or for 24 hours prior to spending time with the child or whilst the parties are responsible for the care of the child;
(b)Denigrating the other parent or member of the other parent’s family or in the presence of hearing of the child;
(c)Discussing these proceedings, including any matters associated with the proceedings or the outcome or consequences of the proceedings, with the child, in the presence of hearing of the child, or showing the child any document connected with these proceedings, including telling the child that the parent wants more time with the child;
(d)Passing information or messages through the child to the other party;
(e)From physically disciplining or restraining the child or permitting a third party to do so;
(f)From exposing the child to abuse (including verbal abuse) or family violence and that the parents will take measures necessary to remove the child from any act of family violence should such circumstances arise;
(g)From posting to any social media account negative or derogatory comments including photos or information in relation to the child, the parents or these proceedings;
(h)From communicating with the other parent except in accordance with these Orders for issues in relation to the child and each parent shall ensure their communication remains polite and respectful.
(i)Permitting the child to be in the company of Ms D
MEDICAL
9.That the Mother shall notify the Father as soon as reasonably possible of the name and contact details of any new medical service providers that the child engages with.
10.That both parents shall immediately notify the other party of any significant illness or medical condition or injury that would involve the child requiring medical intervention.
COPIES OF SCHOOL/MEDICAL INFORMATION
11.That a copy of these Orders authorises the child’s school and medical practitioners to provide to each of the parties:
(a)Copy of school reports, school newsletters, school photo application forms, parent/teacher interview notices and so forth regarding the educational needs of the child; and
(b)Copy of medical reports including any referrals, information regarding any medical condition suffered by the children, including treatment and any other information or material concerning the health and wellbeing of the children.
DEPARTMENT OF TERRITORY FAMILIES, HOUSING & COMMUNITIES
12.That a copy of this Order be provided to the Department of Territory Families, Housing and Communities.
INDEPENDENT CHILDREN’S LAWYER – DISCHARGE
13.The Independent Children's Lawyer shall explain these Orders to the child.
14.The parties shall share equally in the costs of the Independent Children's Lawyer as assessed by the Northern Territory Legal Aid Commission.
15.The Independent Children's Lawyer is to be discharged upon completion of her obligations pursuant to these Orders.
FINAL ORDER
16.Pursuant to Section 65DA(2) and Section 62B of the Family Law Act 1975, the particulars of the obligations of these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
AND THE COURT NOTES
A.The Independent Children's Lawyer is a practitioner who pursuant to Section 67ZA(1)(h) in the course of performing her duties with respect to X born in 2012 (“X”) and pursuant to Section 67ZA(3) holds reasonable grounds for suspecting that a child has been ill-treated, is at risk of or has been exposed to or subjected to or is at risk of being exposed or subjected psychological harm.
B.On 20 January 2023 the Independent Children's Lawyer notified the Department of Territory Families, Housing and Communities of her suspicion that X has been ill-treated, is at risk of or has been exposed to or subjected to or is at risk of being exposed or subjected psychological harm.
C.On 27 February 2023 the Court was provided with correspondence from the Department of Territory Families, Housing and Communities indicating that the Chief Executive Officer was not contemplating making an application for a protection order in relation to X at that stage.
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 Leary & Gilbert has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Judge Young
This is a parenting case concerning X, who is 10 years old. She is about to turn 11. X has a history of instability in her living arrangements, having bounced between her father and her mother over at least the past couple of years. There is a long history of allegations of neglect of X in her mother’s care, most particularly and, to some degree, I think, in her father’s care. Those allegations relate to X not attending school and not being fed, and so on. There have been something like 91 notifications to Territory Families.
Having read the summary from Territory Families, it is apparent that none of those allegations against the mother primarily, have been substantiated. Notwithstanding that, the last position taken by Territory Families was to engage with the mother in the Territory Families, E Families program, which is intended to provide support to families where children are at risk. X has also been provided some support in relation to what appears to be a substantiated incident of X sniffing solvents while at the mother’s home.
Briefly, the background is that, as at August 2020, or thereabouts, X had been living with her mother in Darwin. The mother, at that point, was charged with and found guilty of an assault on a female relative and as a result, in circumstances that are somewhat unclear, X went to live with her father. On 2 November 2021 an order was made that the child live with the father pursuant to an interim application. The circumstances were that the father sought orders on an urgent basis because X had not returned to him after spending time with the mother.
X lived with the father for a period and then, in December 2022, X spent time with the mother during the Christmas holidays in Darwin and she did not return to live with the father. It seems to be at around about that time, in around Christmas 2022, that it became apparent that X had been, at least on one occasion, sniffing solvents from an aerosol container, I was told from the bar table. The CEO of Territory Families was invited to intervene pursuant to section 91B on 27 January 2023. On 31 January 2023 a representative from Territory Families appeared before me and informed me that the CEO declined to intervene and I was told something about the measures that have been taken, which I have already mentioned, including E Families and providing some medical and health advice and support to X and her mother in an attempt to prevent a reoccurrence of the solvent sniffing.
The matter involves, as I have mentioned, a series of allegations of neglect, none of which, as far as I can see, have been substantiated by the child welfare authorities, though that is not to say that there have been no concerns recognised. On the contrary, X has said that, when she lived with her father, she was neglected by him and Ms D, his partner, while they drank. She also reported to the child expert that she had been struck with a telephone cord by Ms D for some infraction, imagined or otherwise.
The family report, which was completed in October 2022, is a long and detailed report. I do not propose to go through it in any detail. There is no question that X is a vulnerable child and has also displayed, perhaps not surprisingly, given her history, challenging behaviours related to the instability of her living arrangements, a sense of rejection and abandonment and low self-worth, in the words of the author of the report. The author of the report also expressed serious concerns about whether X was exposed to family violence, having regard to what X said she had seen between Mr Leary and his partner.
The observation of interactions between X and Mr Leary, on one hand, and X and Ms Gilbert, her mother, on the other hand also give rise to serious concerns. The observation of X with Mr Leary gives rise to concern because it was observed that Mr Leary barely interacted with X during the observation, suggestive of a lack of any real warmth of relationship between them. On the other hand, the observation of X and Ms Gilbert was indicative of a close, warm and comfortable relationship between X and her mother and there were no concerns identified in that observation.
Mr Leary, the father, has not engaged of late in proceedings. His lawyers filed a notice of ceasing to act and have also filed an affidavit of service, deposing that a notice of ceasing to act was served by a police officer on Mr Leary, in Town B, on 23 May 2023. Ms F, Mr Leary’s former solicitor, also appeared this morning and told me from the bar table that she had made repeated efforts to telephone Mr Leary to have him engage and she was not able to get in touch with him, though she did say that she spoke to his partner, Ms D, recently, and it was clear from that that Ms D, at least, was aware that the matter was on for trial today. All in all, I am satisfied that the father was aware that the matter was set for trial today and has taken no steps to engage.
Against that background, I am prepared to make the orders that have been agreed between the mother and the Independent Children's Lawyer, which provide in summary terms that the mother have sole parental responsibility for the child, there being evidence that there is no constructive communication between the father and the mother, and that the child live with the mother and that, otherwise, she spend time with the father as may be agreed or, in default of agreement, for the first half of all school holidays, with other appropriate orders, which I am satisfied, having regard to the matters in section 60CC, subsections (2) and (3), are in the best interests of the child.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Young. Associate:
Dated: 31 May 2023
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