Liepina & Arterberry
[2024] FedCFamC2F 1397
•4 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Liepina & Arterberry [2024] FedCFamC2F 1397
File number(s): SYC 2314 of 2021 Judgment of: JUDGE SHOEBRIDGE Date of judgment: 4 October 2024 Catchwords: FAMILY LAW – final hearing – Aboriginal child in care of non-Aboriginal putative paternal grandparents – risks arising in relation to each of the mother and the putative father – where putative father lives with putative paternal grandparents – where child has experienced significant change in her living arrangements to date-orders for parenting arrangements. Legislation: Family Law Act 1975 (Cth) Cases cited: Hardie & Capris (2010) FamCA 1046
Mazorski & Albright (2007) 37 FAM LR 518.
R v R (2000) 155 FLR 29
Division: Division 2 Family Law Number of paragraphs: 150 Date of last submission/s: 24 September 2024 Date of hearing: 26 September 2024 Place Sydney Solicitor for the Applicant: Namrata Singh of Opal Legal First Respondent: No appearance Solicitor for the Second Respondent: Bal Ram of Rams Family Lawyers ORDERS
SYC 2314 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR LIEPINA
Applicant
AND: MS ARTERBERRY
First Respondent
MR B LIEPINA
Second Respondent
ORDER MADE BY:
JUDGE SHOEBRIDGE
DATE OF ORDER:
4 OCTOBER 2024
BY CONSENT AND ON A FINAL BASIS THE COURT ORDERS THAT:
1.That all previous parenting orders in respect to the child X born 2019 be discharged
2.That the applicant Mr Liepina and second respondent Mr B Liepina shall have joint parental responsibility and joint decision-making authority in relation to all major long‑term issues relating to the child X born in 2019 ("the Child").
3.For the purpose of the above order:
(a)The applicant and second Respondent shall consult with each other on terms they agree to; and
(b)They shall make a genuine effort to come to a joint decision; and
(c)If after taking the above steps, the applicant and second respondent are unable to agree, then the final decision shall be made by the applicant.
4.That the applicant and the second respondent shall keep the mother informed in a timely manner of all significant decisions in respect to the child’s health, schooling and development.
5.That the applicant and second respondent shall have joint parental responsibility in relation to signing all necessary documentation and organising and obtaining and Australian Passport for the Child without the consent or signature of the First Respondent Mother.
6.That pursuant to s11(1) of the Australian Passports Act 2005, these orders provide authority to the Minister for Foreign Affairs or a delegate of the Minister to issue an Australian Passport for the child X born in 2019.
7.That the Australian Passport issued to the child shall be issued to the applicant and to the second respondent to hold on behalf of the child.
8.That the applicant and the second respondent be permitted to and be authorised by these orders to travel internationally with the child.
9.That the child shall live with the applicant Mr Liepina.
10.That the child shall live and spend time with the second respondent by agreement between the applicant and the second respondent.
11.That any time or communication between the child and the first respondent mother be at the discretion of the applicant and the second respondent and that the mother otherwise be restrained from spending any time or communicating with the child.
12.That without admission, the applicant, first respondent and second respondent shall each be restrained from the following:
(a)Denigrating the other parties or any other member of the other party’s household within the presence or hearing of the child or permitting or authorising any third party from doing so.
(b)Discussing these proceedings or any issues arising out of these proceedings with the child.
(c)Physically disciplining the child or allow any party to discipline the child.
(d)Making critical or derogatory remarks on social media in relation to the other party’s or referring in any way to the proceedings.
(e)Being under the influence of alcohol in excess or illegal drugs or substances in the presence of the child or whilst the child is in his or her care; and
(f)Knowingly bringing the child into contact with any person under the influence of illicit drugs or alcohol in excess.
13.That the second respondent shall engage with S Service to build his awareness and understanding around supporting a child with Autism, including being linked into resources and psychoeducation.
14.That the applicant and the second respondent shall engage with Q Health Services in Suburb C as far as possible and practicable to facilitate culturally responsive childhood health and support services for X.
15.That the second respondent shall register and participate in parenting courses including ‘Circle of Security’ (relationships and healthy attachment) and ‘Tuning in to Kids’ (building emotional intelligence and emotion coaching), to build awareness and capacity around child development, fostering healthy relationships, and setting appropriate boundaries with X.
16.That in the event of childhood illness or emergency, the applicant, mother and the second respondent shall inform each other as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child. This order authorises any treating medical/mental health and allied professionals and counsellors to release the child’s medical information to any of the parties to these proceedings.
17.That each party be permitted to liaise directly with and receive information about the child from the child’s relevant schools/education facility and extracurricular activities. This order authorises any and school/education facility and officials to release the child’s information to any of the parties to these proceedings.
18.That the party’s shall keep each other advised at all times as to email and telephone contact details.
19.That all communications between the applicant and the second respondent and the respondent mother shall be by way of email except in the case of an emergency when the applicant and second respondent may communicate with the mother by way of text message or telephone NOTING THAT where possible any such communications may be conducted with the mother through the applicant’s wife Ms D.
20.That a copy of these orders is to be provided by the applicant and or the second respondent to the child’s day care service and or school whichever is applicable as well as to the child’s medical professionals and medical centres.
21.That the Independent Children’s lawyer shall be excused from interviewing the child on the grounds that there are exceptional circumstances.
22.That the order appointing the Independent Children’s lawyer be discharged.
23.That the Independent Children’s Lawyer shall by way of email provide a sealed copy of these orders to the first respondent mother.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE SHOEBRIDGE
INTRODUCTION
These proceedings are about the parenting arrangements for X, who was born in 2019. I will refer to her as “X” in these Reasons.
X:
(a)has been diagnosed with autism spectrum disorder;
(b)has been diagnosed with global development delay;
(c)is non-verbal;
(d)is in receipt of government funding.
There is no certainty that X will develop language, and the Report Writer in this matter opined that it is highly likely that X will require care and support beyond her teenage years and into adulthood, with little possibility of living independently.
The Applicant in this matter is Mr Liepina. X identifies with Mr Liepina as her grandfather. Though he is not biologically her grand-father Mr Liepina fulfills that role in X’s life in every practical sense.
The First Respondent in this matter is Ms Arterberry. Ms Arterberry is X's mother. For reasons that I will set out in more detail below, this matter was ultimately determined on an undefended basis due to Ms Arterberry’s disengagement from the litigation process.
The Second Respondent in this matter is Mr B Liepina. At the time that these proceedings commenced, Mr B Liepina believed that he was the biological father of X. During the course of the proceedings, testing revealed that that was not the case. Mr B Liepina is the son of Mr Liepina.
During the course of the proceedings, Mr Brian Samuel, solicitor, was appointed as the Independent Children's Lawyer for X.
X currently lives with Mr Liepina and his wife, Ms D. Mr B Liepina lives with them, as does his brother.
Mr Liepina seeks orders to the effect that:
(a)X live with him; and
(b)He consult with Mr B Liepina about decisions to be made in relation to parenting X, but that he has the ultimate decision making role; and
(c)X spend time with her mother at times and in circumstances as agreed; and
(d)That X’s surname be changed to Liepina.
Mr B Liepina supports the relief sought by his father Mr Liepina.
The Mother was represented in these proceedings from the time of their commencement until 2024. She filed a Response on 16 April 2021 that said that she would particularise the final parenting orders sought by her “pending interim orders”. There has never been any particularisation of the final parenting orders sought by the Mother provided in these proceedings.
The Mother said, in an affidavit filed on 16 April 2021, that she had no concerns with X living with Mr Liepina and Ms D “in the short term”, but that she was opposed to X living with them “on an ongoing basis”.
The Independent Children’s Lawyer supports, broadly speaking, the relief sought by Mr Liepina, save for the proposed change of surname.
By the time of the final hearing, there was a draft set of Orders that each of Mr Liepina, Mr B Liepina and the Independent Children’s Lawyer consented to. That draft covered all parenting issues save for the proposed change of surname.
Heard on an Undefended Basis
The Initiating Application in these proceedings was filed on 31 March 2021.
The Mother was represented by E Lawyers when she filed a Response on 16 April 2021.
E Lawyers filed a Notice of Withdrawal as Lawyer on 15 June 2022.
F Lawyers filed a Notice of Address for Service on behalf of the Mother on 4 October 2023.
On 5 August 2024, the matter was listed for mention by Teams. The Mother was not present for the mention, and the legal representative appearing for the Mother told the Court that she had been unable to contact the Mother. The matter was listed for Callover on 3 September 2024.
F Lawyers filed a Notice of Withdrawal as lawyer on 22 August 2024.
On 3 September 2024 there was no appearance by or for the Mother. The matter was listed for an undefended hearing on 26 September 2024. Directions were made for the filing of Trial documents.
The following material was filed subsequent to 3 September 2024:
(1)Amended Application for Final Orders filed by Mr Liepina on 13 September 2024;
(2)Affidavit of Mr Liepina filed on 13 September 2024;
(3)Amended Response filed by Mr B Liepina on 13 September 2024;
(4)Affidavit of Mr B Liepina filed on 16 September 2024;
(5)Case Outline of Mr Liepina filed on 24 September 2024;
(6)Case Outline of Mr B Liepina filed on 20 September 2024;
(7)Case Outline of the Independent Children’s Lawyer filed on 14 September 2024.
At the hearing, the Independent Children’s Lawyer tendered a bundle of hard copies of emails between himself, the legal representatives for Mr Liepina, and the Mother (Exhibit 1).
I am satisfied, on the basis of the contents of Exhibit 1, that the Mother has had sufficient notice of the documents that were relied upon by the Independent Children’s Lawyer and Mr Liepina.
The legal representative for Mr B Liepina tendered a bundle of hard copies of emails between his office and the Mother (Exhibit 2).
I am satisfied that the Mother has had sufficient notice of the documents relied upon by Mr B Liepina.
Exhibit 1 included evidence of communication to the Mother of the Orders that were made on 3 September 2024.
The only other document relied upon in the submissions made by the Independent Children’s Lawyer was the Family Report prepared by Court Child expert Ms G dated 4 April 2024.
I am satisfied that the Mother has had and read a copy of that Family report because:
(1)It was sent to each of the parties by the Court; and
(2)The evidence of Mr Liepina, found at paragraph 171 of his affidavit filed on 13 September 2024 is to the effect that the Mother contacted him after the release of the Family Report and offered him her views of the contents of it.
On the basis that the Mother has had knowledge of:
(1)the Orders sought by the other parties in these proceedings; and
(2)the contents of the material relied upon by each of the other parties; and
(3)the contents of the Family Report; and
(4)the hearing date for this matter;
I am satisfied that she has had opportunity to participate in the proceedings, and to oppose the making of the Orders sought by the other parties if she wished to do so.
The Mother is apparently aware of the identity of the likely biological father of X. She has not disclosed who that person is. I am satisfied that it is in X’s interests to proceed to determine this matter notwithstanding that that person is not a party.
Agreed orders
As said above. At the final hearing Mr Liepina, Mr B Liepina and the Independent Children’s Lawyer consented to Orders being made in terms handed up, and which for convenience I note are in the same terms as the Orders that I have made.
For the reasons that I set out below I am satisfied that those Orders are in X’s best interests.
Issues in dispute
The only remaining issue was whether or not Mr Liepina should be granted permission to change X’s surname.
Evidence
I have identified above the material relied upon by the parties at the hearing.
In the absence of the Mother, the matter proceeded on an undefended basis and on submissions only.
Relevant facts
The Mother is 29 years old.
Mr Liepina is 62 years old.
Mr B Liepina is 32 years old.
X is 5 years old.
The Mother and Mr B Liepina commenced a relationship in 2015.
In 2018, the Mother was charged with assaulting Mr B Liepina. She was convicted in her absence.
X was born in 2019.
In 2020 there was an altercation between the Mother and Mr B Liepina at the home of Mr Liepina. The police attended and ultimately an AVO was issued naming the Mother as the protected party from Mr B Liepina. A separate AVO was subsequently issued naming Mr B Liepina as the protected party from the Mother.
In 2020 Mr B Liepina was sentenced to imprisonment for a crime.
In late 2020 the Mother left X in the care of Ms F and, by extension, with Mr Liepina.
Mr B Liepina was released from prison in late 2020.
In 2021 the police attended at the home of Mr Liepina and Ms F and removed X from their care. That appears to be in response to complaint by the Mother. X was placed in the Mother’s care.
Mr Liepina initiated these proceedings on 31 March 2021.
On 6 April 2021 the Court issued a Recovery Order and amongst other things ordered that:
(1)X live with Mr Liepina (and Ms F) on an interim basis; and
(2)X spend supervised time with the Mother; and
(3)Mr Liepina (and Ms F) were not to leave X alone with Mr B Liepina.
The Orders made on 6 April 2021 were reinforced by Interim Orders made on 28 April 2021 after a contested interim hearing.
The Mother and Mr B Liepina were ordered to participate in paternity testing on 9 November 2022. In 2023, the results of that testing confirmed that Mr B Liepina is not the biological father of X.
The parties participated in mediations in late 2023. No agreement was reached in relation to final orders on either of those occasions.
On 4 April 2024 the Family Report of Ms G issued (“Report”). Ms G had the opportunity to interview all of the parties, including the Mother. I will refer to passages from that Report below.
The relevant legal principles
Parties other than the biological parents of a child have standing, in certain circumstances, to bring an Application for parenting orders of a child.
Section 65C of the Family Law Act 1975 (“the Act”) empowers persons concerned with the care, welfare or development of a child to make application for parenting orders in relation to that child.
Section 65G of the Act prescribes that the Court must not make a parenting order that provides for a child to live with a non-parent, or which deals with the allocation of parenting responsibility to a non-parent unless:
(1)The parties have attended a conference with a family consultant to discuss the matter to be determined, which has occurred in this case; or
(2)The Court is satisfied that there are circumstances that make it appropriate to make the proposed order even though the parties have not attended a conference with a family consultant. For the reasons set out below, even if the parties had not attended such a conference, I would be satisfied that the circumstances of this case are such that the Orders that are proposed are in the best interests of X.
The principles governing the determination of competing parenting applications are set out in Part VII of the Act.
In essence, when making a parenting order, the Court must consider what is in the best interests of the child pursuant to section 60CA of the Act, but, as succinctly put by Murphy J in Hardie & Capris (2010) FamCA 1046 at [48]:
“Best interests is not the application of a theoretical construct, but rather the practical application of a number of considerations relevant to the individual needs, desires, health and aspirations of the particular child of this parenting relationship.”
The Act specifies six matters which must be considered in determining what is in the child’s best interests at subsection 60CC(2) of the Act. The matters to be considered include:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child
In contemplating these matters, section 60CC(2A) of the Act requires the Court to consider the importance of a child to have a meaningful relationship with both parents. The Court must also consider the need to protect the child from physical and psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Safety
Section 60CC(2) of the Act deals first with:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
And further, subsection (2A) says:
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child’s family.
Pursuant to subsection 60CC(2)(a) of the Act, the Court must have regard to that arrangement which would promote the “safety” of a child and those who have care of the child. “Safety” is not defined in the Act. It is often said that words in a statutory context are to be given their ordinary or natural meaning.[1] The Oxford English Dictionary defines the noun ‘safety’ as ‘[t]he state of being protected from or guarded against hurt or injury; freedom from danger.’
[1] Richard Calnan, Principles of Statutory Interpretation (Oxford University Press UK, 2023) ch 5
The Court is drawn towards the view that ‘safety’ of a child and its carer means, in this context, protecting that child and carer against hurt or injury or danger, whether physical or psychological, arising from historic or ongoing acts or behaviours. It includes protection from fear. It is not the complete elimination of prospective hurt, injury or danger, but rather making such Order as affords the child and its carer the most optimal protection from these harms or potential harms.
In contemplating the child’s safety, or by natural implication any risk of an unacceptable nature to that safety posed by a proposal, the Court is mandated to consider any history of family violence, abuse or neglect involving the child or a person caring for the child, together with any family violence Order previously or currently in place.
Parent/Carer Capacity
The capacity of a parent to ensure the safety of a child, is further a consideration under subsection 60CC(2)(d) of the Act, requiring consideration of the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs.
If read narrowly, the section might preclude consideration of the capacity of persons who will spend time or communicate with a child but do not have parental responsibility (or are not proposed to have parental responsibility). In any event, s 60CC(2)(f) of the Act enjoins me to consider all relevant circumstances and this includes, in my view, the capacity of all such persons.
The Child
By virtue of subsections 60CC(2)(b), (c), (e) and (f) of the Act, the Court must have regard to:
(a)The views expressed by the child;
(b)The developmental, psychological, emotional and cultural needs of the child;
(c)The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so; and
(d)Anything else that is relevant to the particular circumstance of the child.
The weight to be given to any views expressed by a child is as the Court considers appropriate in the circumstances. As held in R v R (2000): There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. What is required is that they be given appropriate and careful consideration and not simply treated as a factor in the determination of the child’s best interests without giving them further significance. When validly held reasons are departed from by the trial Judge, it is apparent that good reason should be shown for doing so.
The concept of “a meaningful relationship” has been discussed in many authorities, most significantly the decision of Justice Brown in Mazorski & Albright.[2] Those authorities establish that “a meaningful relationship” is a qualitative concept. The relationship is not measured simply by the amount of time the child is spending with each parent, but the quality of the relationship that exists between the child and parent.
[2] (2007) 37 FAM LR 518.
Having said that, it is much more difficult for a young child to maintain a meaningful relationship if they are unable to spend time with both parents on a regular basis. Electronic interaction via Skype or Facetime is better than no communication, but it is no replacement for personal interaction, physical affection and for a child being able to communicate freely with their parent.
The Child’s Aboriginal Identity
Subsection 60CC(3) of the Act requires the Court to consider the child/ren’s right to enjoy their culture as defined in subsection 60CC(3)(a) together with the likely impact of any proposed parenting Order upon that right.
In relation to decision making, section 61DAA of the Act provides:
(1)If a parenting order provides for joint decision‑making by persons in relation to all or specified major long‑term issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken to require each of the persons:
(a) to consult each other person in relation to each such decision; and
(b) to make a genuine effort to come to a joint decision.
(2)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
As set out in section 61DAA of the Act, the effect of the making of an Order providing for joint decision-making on major long-term issues is that each party is required to consult each other in relation to such a decision and to make a genuine effort to come to a joint decision.
Section 61CA of the Act encourages the parents of a child, where it is safe to do so, to consult each other about major long-term issues in relation to a child and in doing so, to have regard to the best interest of the child as the paramount consideration.
Major long-term issues are set out in section 4 of the Act for issues about the care, welfare and development of the child and include, but are not limited to, the child’s education, religious and cultural upbringing, health, name and changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
Should a parenting Order deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child, then provision can be made for joint or sole decision-making in relation to all or specified major long-term issues (s 61D(3) of the Act).
Application of the Relevant Legal Principles to the Facts of this Case
I am satisfied that Mr Liepina and Mr B Liepina each meet the description of a person concerned with the welfare of X as per section 60CC of the Act.
The Child X
Before applying the law, I note the following in relation to X:
X was born in 2019, she is 5 years old.
X lives with the applicant and second respondent.
The second respondent is not the biological father of X.
The first respondent and the biological father identify as Aboriginal. The biological father has reportedly declined to be involved in X’s life, and no formal identity was provided to the family report writer.
The family report writer made the following observations as to X:
1.[X] presented as a happy child engaging with family members playfully. She made numerous distinct pitched sounds, but no clear words were spoken, repeatedly poking out her tongue and not making any eye contact with others.
2.[X] seemed to be most regulated with the second respondent during their one-on-one observation, parallel playing with him and comfortably accepting his support with placing lids on textas and correcting her pen grip. She appeared to take an enthusiastic interest in the second respondent’s suggestions in play, following his modelling with excitement. There was genuine affection expressed by the second respondent towards [X], which she appeared to respond positively and comfortably to.
3.The first respondent indicated she would be nervous to be observed with [X] on her own, so it was arranged for [Ms D] (mother of second respondent) to remain present. Upon entering the room, the first respondent approached [X] in a child-focused way, careful not to startle [X] offering a gentle greeting and waiting for [X] to invite her to interact, which [X] did positively. [X] was observed to engage with the first respondent in a curious and directive manner, passing the textas to colour a picture, which the first respondent responded to accordingly. [X] remained engaged for a significant period with the first respondent following her prompts, interacting calmly and occasionally standing up and stimming, appearing to be from excitement at observing the first respondent’s colourful creation (colouring a picture). At no time did [X] indicate discomfort in the first respondent’s presence.
4.[X] appeared to engage in less stimming though was more dysregulated during observation with the group consisting of the second respondent, [Ms D] and [Ms F] (sister of second respondent) in the room. She became excited, inviting the adults to chase her, particularly when they attempted to prevent her from touching or engaging in unwanted behaviour, such as trying to escape from the room, flicking switches and throwing items. [X] mainly interacted with the second respondent initially whilst everyone sat around the table with her. She spent some time delightfully interacting with the second respondent and [Ms F] playing whilst directing each of them to engage with items of her choosing, with each adult describing the item and naming the colour and its use. [X] remained joyful throughout the observation. She demonstrated an ability to remain engaged in activities she enjoyed, such as colouring or guiding the adults to colour, for periods of approximately five minutes, though when she lost interest, was observed to busily scan her surroundings with an eagerness to run and escape.
The family report writer concluded that X is a child with significant developmental delay who is highly vulnerable to adverse experiences, requiring close supervision, consistency, and attunement from the adults in her life to ensure she is safe and can reach her potential. In considering X’s lived experience of her secure base within her psychological family, the family report writer supported that X remains living with the applicant and second respondent.
I will now turn to the issues.
Safety
Issues identified by the child court expert at paragraph 21 of the family report include, at sub-paragraph (f) "Whether there are concerns for [X]'s safety in the care of [Ms Arterberry] due to potential risk of neglect, exposure to substance use, and family violence".
The parties (other than the Mother) seek an order that any time between X and the Mother be supervised or at the discretion of Mr Liepina and/or Mr B Liepina.
At paragraph 2l(e) of the family report the child court expert identifies as an issue "whether there are concerns for [X]'s safety in the care of [Mr Liepina] and [Mr B Liepina] due to potential risk of neglect, exposure to substance use, and family violence".
The child court expert identifies the risk issues at paragraphs 32 to 45 of the family report. Significant allegations of family violence are made by both the mother and Mr B Liepina, and to a lesser extent by Mr Liepina, involving the police and the DCJ.
The allegations of family violence made by the mother against Mr B Liepina include "harassment, threats, intimidation, psychological, physical, and verbal abuse" (per 34 of the family report).
Paragraph 34 goes on to detail some of the family violence allegations made by the mother against Mr B Liepina. The ICL, quite rightly in my view, raises a concern about such matters.
Paragraph 35 of the family report goes on to detail allegations made by Mr Liepina against the Mother.
Mr Liepina and the Mother make mutual allegations against each other of significant family violence.
Paragraph 37 of the family report identifies the Mother's concerns in respect to Mr Liepina and Mr B Liepina in respect to allegations of neglect and states:
"[Ms Arterberry] raised concerns that [Mr Liepina] and [Mr B Liepina] are failing to access the necessary intervention to support [X] to meet her development goals, and generally fail to socialise her outside of school and the home due to their inability to contain her and keep her safe. She is concerned [X] is restricted in her social activities and is entertained almost entirely with an iPad or screens".
The above allegations are substantially denied. However, the Liepina family members each admitted to the child court expert that X has an iPad "which they use to help her selfsoothe".
X came to the court observation with her iPad which the child court expert asked to be put away and was done so without X becoming distressed.
The parties each make competing allegations of substance abuse against the other. There is presently an order in place for urinalysis testing by the mother and Mr B Liepina at the request of the ICL.
The Mother has not complied with any requests of the ICL.
Mr Liepina has complied with test requests, which have to date all been negative.
Paragraph 63 of the family report provides the following evaluation of the issue of substance abuse:
"Positively, there is no suggestion [Ms D] engages in drug use, making her a protective factor in mitigating such risk to [X] and considering all parties reports of her providing the primary care of [X]. Persistent and direct exposure to harmful substances […] has the potential to cause physical harm to a young child [X]'s age, hence it is vitally important for the adults in her life to make the necessary adjustments to their behaviour and refrain from use in her presence".
There are significant allegations of mental health and substance abuse in respect to the Mother, a number of which have been substantiated. Paragraph 65 of the family report provides the following evaluation:
“The allegations of [Ms Arterberry] using drugs was consistent with material from the Child Protection records, demonstrating a long-standing pattern of drug use which appeared to coincide with a significant impairment in her parenting capacity. This suggests a reasonable likelihood of [Ms Arterberry] using illicit substances, which will likely place significant risk of harm to [X] should this behaviour be continued".
Mr Liepina deposes. At paragraph 180 and 184 of his trial affidavit deposing to pending AVO proceedings between the Mother and her current partner as well as to the proceedings relating to the Mother's housing.
The Mother has made allegations of mental health issues, citing depression specifically, against Mr Liepina. The allegations of the Mother have not been supported by any evidence other than the Mother’s assertion and are un-substantiated. The DCJ in the late 90's determined that the allegations were "malicious".
The Mother has also raised concerns about consumption of alcohol by Mr Liepina. Paragraph 64 of the family report says:
"[Ms Arterberry]'s allegations of [Mr Liepina]'s alcohol use appears to have been historical, with [Mr Liepina] reporting he does not have a problematic relationship with alcohol, along with assertions from his wife and [Mr B Liepina] confirming he does not drink alcohol".
In relation to the issue of violence by the Mother, the child court expert said this at paragraph 60 of her report:
The issues raised in relation to [Ms Arterberry] perpetrating family violence against [X], [Mr B Liepina], and [Mr Liepina] are serious in nature. Behaviour described, including smacking, and screaming at [X] as an infant, along with threats to surrender [X] to child protection, implies a repeated pattern of behaviour. These accounts appear consistent with historic reports of [Ms Arterberry]'s behaviour with her eldest children, [Mr M], and his mother (paternal grandmother of [N] and [O]) in child protection material. [Ms Arterberry] denies smacking any of her children […] or intentionally physically harming [Mr B Liepina], describing her current relationship with [Mr P] as healthy and free of violence. [Ms Arterberry]'s self-report, along with the absence of recent collateral material, does not provide this author sufficient reassurance that such serious and repeated behaviours have been sufficiently addressed to ameliorate harm being caused to [X]. In this context, without reassurances such as evidence of engagement with services and no reports to police or child protection, it is this author's opinion that [X] likely remains at high risk of harm resulting from family violence in her mother's care.
In relation to the Mother’s allegations of violence by Mr B Liepina, paragraph 61 of the family report provides the following evaluation of the mother's allegations:
"[Ms Arterberry]'s accounts of family violence perpetrated by [Mr B Liepina] including her being subject to alleged verbal, physical, and psychological abuse, and more recently stalking and intimidation, suggests this is a pattern of behaviour perpetrated against her over a significant period. The incidents reported by [Ms Arterberry] and recorded in the police material appear to be exacerbated by the parental dispute. There does not appear to be any hope that the relationship between [Mr B Liepina] and [Ms Arterberry] is likely to improve, indicating any future attempts to coparent are likely to increase risk to each party and [X], including potentially lethal repercussions. If the account [of Ms Arterberry] makes of [Mr B Liepina’s] attempt to [endanger her] recently, with children [present], is found to be accurate that would suggest that the risk of future violence perpetrated by [Mr B Liepina] towai [Ms Arterberry] is significant and very likely in a coparenting context".
Paragraph 62 of the family report provides the following evaluation of the allegations of family violence made by the Mother against Mr Liepina:
"The assessment of [Mr Liepina] regarding family violence against [Ms Arterberry] experiencing verbal abuse by him appears to be historical as reported [Ms Arterberry], with no recent accounts of any such incidents occurring for a significant period of time. Whilst [Mr Liepina] denies having been verbally abusive, it is unlikely that his and [Ms Arterberry]’s coparenting relationship will ever be respectful or effective. In the context of a coparenting relationship, there may be risk present for such incidents to occur in the future if they were required to communicate.”
On the face of the Mother’s evidence, such as it is, there are potentially serious issues of risk to be considered in the household of Mr Liepina. However:
(1)Despite the opportunity to do so, the Mother has stopped participating in the proceedings. If she was genuinely concerned about the safety of X in the care of Mr Liepina, I am satisfied that she would have continued to participate in the proceedings and pressed her concern; and
(2)In relation to the allegations of drug used raised against Mr B Liepina, I observe that he complied with request to undertake urine analysis on multiple occasions and that on each occasions the results were negative for illicit drugs; and
(3)There is otherwise insufficient evidence for me to be persuaded that any of the risks raised by the Mother are of such magnitude that they outweigh the benefits to X of continuing to reside in the household of Mr Liepina.
In relation to the Mother, the failure by her to comply with requests for urine analysis, and the historical reports by DCJ as observed by the court child expert leave me with concerns that there is an unacceptable risk that the child would be exposed to either drug taking, or the effects of drug taking, if she were to spend time in the Mother’s care unsupervised.
Whilst I am concerned about the nature of the untested allegations against Mr Liepina and Mr B Liepina, for the reasons set out above, I am satisfied that the Orders that have been proposed by them remain the best parenting option available for X at this time.
Views expressed by the Child
X is 5 years old, has significant developmental challenges and is nonverbal.
I am satisfied that there are no views expressed by X, or able to be expressed by X, that would assist this process.
Capacity to Care
X has lived with Mr Liepina and his wife for most of her life except for a period in 2021 when she lived with her mother.
X's care is presently shared by her various family members including Mr Liepina and his wife, Mr B Liepina and Mr B Liepina’s siblings.
X's time with her mother since the interim parenting orders dated 28 April 2021 has been supervised through a contact centre in two suburbs. X last spent time with the Mother in 2023. The Mother's time has been very limited.
Mr Liepina deposes that her last visit in 2023 was for no more than 1 hour.
In the report writer's evaluation in respect to the Mother's capacity, she states at paragraph 66 of the family report:
"It is this author's opinion that [Ms Arterberry] and [X] require frequent and consistent supported and supervised time together for any hope of a secure parent child relationship foundation to be established. This assessment raises concerns that [X] may be placed at considerable risk in [Ms Arterberry]'s care if [Ms Arterberry]'s mental health were to decline, based on a repeated pattern of behaviour over time".
X has high needs. She has been diagnosed with autism spectrum disorder and with global development delay. She is non-verbal and may never develop language.
Paragraph 10 of the family report states:
"[X] has commenced pre-school across two different schools. She is enrolled […] at [H School], Monday, and Tuesday, at home on Wednesday, and attends [J School] Thursday and Friday".
X is expected to commence kindergarten in 2025. Paragraph 46 of the family report states:
"[Mr Liepina] considers [X] to be his granddaughter, despite her parentage, and believes he and his family are equipped physically, psychologically, financially, and emotionally to continue meeting [X]'s complex needs. Whilst he acknowledges there will be ongoing challenges, he expressed gratitude, dedication, and pride to be raising [X], explaining that his family support one-another consistently to provide everything [X] needs, declaring [Mr B Liepina] a competent and loving father to [X]. He expressed great concern for [X]'s wellbeing should she be forced to leave the only secure base she has ever experienced, believing it will be detrimental to her overall wellbeing".
Mr B Liepina is reported as stating to the child court expert at paragraph 47 of the family report:
"He acknowledged his parents would benefit from respite from [X], stating that their responsibility to supervise him with [X] has been hard at times, so he wishes to step up more to give them a break, should he be granted unsupervised time. [Mr B Liepina] is of the belief that he can continue to meet [X]'s needs, particularly with the support of his siblings as his parents get older".
In her evaluation at paragraph 57 the child court expert states:
"[X] is a child with significant developmental delay who is highly vulnerable to adverse experiences, requiring close supervision, consistency, and attunement from the adults in her life to ensure she is safe and can reach her potential".
The child court expert goes on to opine:
"Depending on the outcomes achieved with intervention, there is no certainty of her developing language, and it is highly likely [X] will require care and support beyond her teenage years and into adulthood, with little possibility of living independently".
Paragraph 67 of the family report provides the following evaluation of the applicant and his wife's care of and capacity to care for and provide for the needs of X:
"This assessment revealed that [Mr Liepina] and [Ms D] have demonstrated their capacity to meet [X]'s daily needs. [X] appeared healthy, well cared for, and enjoyed the affection she received from the [Liepina] family members present during observations. Due to the absence of observations between [Mr Liepina] and [X], it is difficult to assess their relationship other than what has been reported by him, [Mr B Liepina], and [Ms D]. It is unclear whether the level of intervention [X] is receiving is adequate or optimally effective, nor is it clear to know of her progress in the absence of any education reports or developmental updates or assessments. [X] was observed to have significant care needs, which have likely been met via the collaboration amongst the [Liepina] family, as each of them reported. The observations revealed each of the [Liepina] family members present were attentive, warm, playful, attuned, and responsive to [X]'s needs, consistent with their descriptions of her personality traits (happy and cheeky), behaviours (stimming and absconding), and interests (colouring and iPad). It would appear [X] has her needs met in the care of her psychological grandparents".
In respect to Mr B Liepina paragraph 68 of the family report provides the following evaluation:
"This assessment revealed [Mr B Liepina] shares a close relationship with [X], as she appeared most comfortable and engaged with him during observations. Whilst being interviewed he demonstrated an understanding of [X]'s specific developmental needs, describing the importance of her routine, interventions, and safety around the home (describing modifications which have been made to accommodate her). Reports from [Mr B Liepina]'s parents confirm he is an attentive, devoted, and engaged father to [X], consistent with his own assertion of planning his business around the needs of [X]. He was observed to be child-focussed, predicting, and managing risk, placing reasonable and firm boundaries, and expressed genuine delight and pride in [X]. It seems [Mr B Liepina] demonstrates the capacity to parent [X] within the context of him remaining to live with and receiving support from his parents and family".
In respect to the Mother the child court expert evaluates her capacity at paragraph 69 of the family report which concludes:
"It is this author's assessment that [Ms Arterberry] currently does not have the capacity to meet the developmental needs of [X], particularly in the context of raising three other children and her history of parenting stressors influencing her substance use, decline in mental health and parenting ability".
The child court expert evaluates the potential outcome and effect on X were Mr B Liepina to move out of the Liepina household at paragraph 70 of the family report which states:
"There is the potential for [Mr B Liepina] to decide to move out of the family home, particularly if pursuing a new relationship. In the event of [Mr B Liepina] doing so, this will likely be quite disruptive for [X] given her experience of being raised by numerous adults whom she has a close relationship with. It is unclear if [Mr B Liepina]'s parenting capacity would be compromised in the absence of such supports, and he will likely have to prioritise a predictable routine with support people to manage the adjustment. With the continued support and connection with his family, his ability to prioritise [X]'s needs, along with the observed engagement with [X], it seems [Mr B Liepina] would likely have capacity to provide the primary parenting role with thorough planning".
X has different needs to many other children the same age. I am satisfied that Mr Liepina and Mr B Liepina have the capacity to meet those needs.
The benefit to the child of being able to have a relationship with the child’s parents and other people who are significant to the child, where it is safe to do so
Based upon the extracts from the family report that I have reproduced above, I am satisfied that the people in X’s life who she identifies with as family, and with whom she has a close loving relationship, include Mr Liepina, Ms D, Mr B Liepina and Mr B Liepina’s siblings.
I am satisfied that the Orders proposed ensure that X will continue to be able to have safe, loving and nurturing relationships with those people.
The Mother has failed to take up the opportunity to spend time with X, albeit under supervision, since mid-2023.
If at some point in the future the Mother wants to commit to developing a relationship with X, she can always approach the Court at that time and set out some evidence in support of that commitment.
At the present time, I find that the provision for X to spend time with her Mother under supervision is consistent with the identified risk factors, and is also consistent with X’s needs.
X’s Right to Enjoy Her Aboriginal Culture
X’s mother identifies as a first nations Australian. She identifies as being of the K People and the L People.
I have already referred to X’s developmental issues.
At paragraph 57 of the family report, the court child expert says that:
“It is unlikely [X] identifies as Indigenous, given her developmental delays, lack of exposure and having been raised within a non-indigenous environment, neither is it clear whether it will be of significance to her as she matures. The priority for [X], in the context of the parenting dispute, is maintaining stability along with provision of intensive intervention actively supported by the adults in her life. At this stage of [X]’s development, her cultural identity is likely to be difficult for her to make meaning of.”
The report writer continues at paragraph 59 to say that:
“It is likely that the absence of [X]’s opportunity to celebrate her culture of origin is of little understanding or concern to her, in the context of her significant developmental delay and limited cognitive function. The concept of culture may not be realised by her should her cognitive function remain limited. It is likely the biggest impact surrounding the absence of indigenous culture in [X]’s life will be felt by [Ms Arterberry], [X]’s biological extended maternal and paternal family, and potentially [X]’s siblings. [X] could benefit from participating in cultural celebration, including family or community events, with the support of the adults in her life, including her mother and siblings, in the event she does spend time with her mother, as she matures. The [Liepina] family acknowledged [Ms Arterberry] as identifying as Indigenous, however did not indicate their willingness or desire to support [X] in her culture of origin. The limited capacity for [X] to safely participate in external activities with her flight risk, is likely to limit opportunities of community celebrations. The [Liepina] family will likely benefit from engaging with a community support service to potentially facilitate [X]’s introduction to culture.”
Clearly the Orders that I am going to make have the effect of limiting X’s exposure to her Aboriginal culture. Potentially to nothing. I recognise the significance of that; however, I prioritise X’s needs as already identified above.
Parental Responsibility
Paragraph 16 of the family report states in respect to the Mother, Mr Liepina and Mr B Liepina “communication between the parties does not occur currently and appears to have only occurred through legal representation.”
Mr Liepina and Mr B Liepina seek shared parental responsibility for X subject to Mr Liepina having the final decision-making responsibility should they be unable to agree as to any significant decisions.
Paragraph 76 of the family report provides the following evaluation of Mr Liepina and Mr B Liepina sharing parental responsibility:
“It is uncertain how [Mr Liepina]'s health and mobility issues are likely to impact his ability to engage in all aspects of decision making for [X] as she grows and in the event her needs increase. It may be appropriate, given [Mr B Liepina]’s observed interactions and insight into [X]'s needs, along with the endorsement of his parents regarding his parenting, that he increases his responsibility and provide equal shared parenting with [Mr Liepina]”.
Mr Liepina and Mr B Liepina have agreed on a decision-making regime. I see no reason to interfere with that agreement. If circumstances change significantly enough to warrant change in the future, there is capacity for any party to apply to the Court for a variation of the Orders at that time.
Change of Surname
I am not persuaded that it is in X’s best interests to change her surname at the present time.
She is only 5, and has the developmental hurdles referred to above.
For the same reasons that I have identified above in relation to aboriginal culture it is unlikely that X has capacity to understand the significance of having a different last name to the Liepina family.
The evidence at the current time suggests that it is possible that X will never develop language and there is insufficient evidence at the current time to persuade me that she will suffer any negative effects personally as a consequence of being aware of having a different last name to the Liepina family.
There is also no evidence to suggest that there has been any logistical problems for the Liepina family in relation to the provision of care to X that have arisen as a consequence of her last name.
Accordingly, I do not see any reason to change her last name at the present time.
The Orders
For the above reasons I make Orders as follows.
I certify that the preceding one hundred and fifty (150) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Shoebridge. Associate:
Dated: 4 October 2024
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