Linnane & Linnane

Case [2022] FedCFamC1F 461

Federal Circuit and Family Court of Australia

(DIVISION 1)

Linnane & Linnane [2022] FedCFamC1F 461

File number(s): PAC 5021 of 2020
Judgment of: HANNAM J
Date of judgment: 1 July 2022
Catchwords: FAMILY LAW –PARENTING – Interim parenting – Where there is one child of the proceedings – Where the contest for parenting orders is between the maternal aunt and the interveners – Where the interveners are the adoptive parents of four of the child’s siblings – Where the mother and father are not participating –Where the mother and father have significant substance abuse and family violence issues – Where the child has been in the care of the maternal aunt since birth – Where there is a risk of harm in the maternal aunt’s home due to exposure to family violence – Where family violence is said to be perpetrated by a foster child in the maternal aunt’s care – Where there is risk of neglect in the maternal aunt’s care – Where the court child expert recommends an immediate change in residence – Where orders made that the child live with the interveners and that they hold parental responsibility
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65D
Cases cited:

Deiter & Deiter [2011] FamCAFC 82

Mazorski & Albright [2007] FamCA 520

McCall & Clark (2009) 41 Fam LR 483; [2009] FamCAFC 92

Division: Division 1 First Instance
Number of paragraphs: 176
Date of hearing: 10 June 2022
Place: Parramatta
Solicitor for the Applicant: Aboriginal Legal Service
Solicitor for the First Respondent: Litigant in person (did not participate)
Solicitor for the Second Respondent: Litigant in person (did not participate)
Solicitor for the Interveners: Care Legal
Solicitor for the Independent Children's Lawyer: Mark MacDiarmid Family Law Specialist

ORDERS

PAC 5021 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS B LINNANE

Applicant
AND:

MS C LINNANE

First Respondent

MR WITOSKI

Second Respondent

MR WHYMAN

First Intervener

MS WHYMAN

Second Intervener

INDEPENDENT CHILDREN'S LAWYER

order made by:

HANNAM J

DATE OF ORDER:

10 June 2022

THE COURT ORDERS THAT PENDING FURTHER ORDER:

Prior inconsistent Orders

1.To the extent that any prior Order of the Court in this matter is inconsistent with the Orders below, these Orders shall prevail.

Discharge of the Orders of 19 August 2021

2.Orders 3 to 12 inclusive of the Orders of 19 August 2021 are discharged.

Sole Parental responsibility

3.The Interveners shall have sole parental responsibility for the child X born in 2020 (‘the child’), and:

3.1the Interveners shall keep the Applicant maternal aunt advised via email of the child’s progress including but not limited to matters of the child’s well being, health, education or extra curricular activities;

3.2The Applicant shall be entitled to communicate via email with the Interveners any concerns or any suggestions she wishes to make for the progress and well being of the child; and

3.3the Interveners shall give due regard to such matters as are raised by the Applicant but, in the event that…

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AGLC
Linnane & Linnane [2022] FedCFamC1F 461
Case
[2022] FedCFamC1F 461
Decision Date

CaseChat Overview and Summary

The case of Linnane & Linnane involved proceedings regarding the care and custody of a child born in 2020. The child had been placed in the care of his maternal aunt in mid-2020 and had remained there since. Four of the child’s siblings were removed from the parents by the Department of Communities and Justice in early 2017 and placed in the care of the interveners, who were the child's aunts. Adoption orders were made in early 2020, granting sole parental responsibility to the interveners for each of the child's siblings. The maternal aunt filed an Application for Consent Orders on 22 September 2022, seeking sole parental responsibility for the child and that the child live with her, with specified conditions for contact between the child and the parents. The interveners filed an Application in a Case on 23 December 2021, seeking to be joined to the proceedings and requesting interim orders that they hold parental responsibility for the child and that the child live with them, or in the alternative, that the child spend defined time with his siblings.

The court was required to determine whether the interim orders proposed by the Independent Children's Lawyer and supported by the interveners were proper, considering the best interests of the child as the paramount consideration. This involved assessing the competing contentions of the parties, especially in relation to matters of risk such as neglect and exposure to family violence. The court also had to weigh the primary considerations under s 60CC of the Act, including the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from harm. The court needed to consider the evidence of the court child expert, which was based on her observations of the child's physical state and other reliable sources, in assessing the risks and the capacity of the maternal aunt and the interveners to meet the child’s needs.

The court found that the concerns of the interveners about the maternal aunt's care and the child's presentation were consistent with the findings of the court child expert. The expert identified significant risks in the maternal aunt's care, such as neglect and exposure to family violence, which were likely to cause harm to the child. Given the magnitude of these risks and the unlikelihood of any final decision before the end of 2022, the court concluded that the interim orders proposed by the Independent Children's Lawyer and supported by the interveners were proper and in the child's best interests. The court attached particular weight to the need to protect the child from harm and the capacity of the maternal aunt and the interveners to meet the child’s needs.

Accordingly, the court made orders that the interveners hold parental responsibility for the child and that the child live with them. The court also made orders that the child spend time with his parents as agreed between the maternal aunt and the interveners, with the time being supervised by the maternal aunt or taking place at a contact centre. These interim orders were intended to protect the child from the identified risks and ensure that his needs were adequately met.

Orders

Orders of the court

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Background

Background to the litigation

Following the interim hearing orders were made as sought by the ICL and adopted by the interveners, as for the following reasons it was found that these orders were both proper and in the best interest of the child. Background The parents in these proceedings who are both 45, live in a regional town and have a number of children between them including four children together. Limited information is provided by the participating parties (“the maternal aunt” and “the interveners”) in respect of the parents and their relationship, however it is not disputed that there are significant risk issues relating to the parents due to family violence and drug use and consequently they do not have care of any of their children. The maternal aunt, who is 60, lives in the same regional town as the parents with a child who was placed in her care by the Department of Communities and Justice (“DCJ”) in 2008 and who is now aged 14 (“the maternal aunt’s foster grandchild”). He is the grandchild of the maternal aunt’s former de facto partner from whom the maternal aunt separated due to family violence. The maternal aunt, who is not currently partnered, has three adult children from a previous relationship. The interveners who are 56 and 58 respectively, married in 2010 and have four adult children from prior relationships between them. In early 2017, four of the child’s siblings were removed from the parents by DCJ and placed into the care of the interveners. The child’s siblings were aged between one and eight at that time. In early 2020 adoption orders were made by the Supreme Court of NSW granting sole parental responsibility for each of the child’s siblings to the interveners. The child was born in 2020 and was discharged from hospital into the maternal aunt’s care and has remained in her care since this time. In mid-2020 the maternal aunt facilitated the child’s siblings and the interveners spending time with the child at her home on one occasion. An Application for Consent Orders was filed by the maternal aunt on 22 September 2022 seeking that she hold sole parental responsibility for the child and that the child live with her. Orders were also sought that the child spend time with each parent as agreed between the maternal aunt and that parent and that such time be supervised by the maternal aunt or take place at a contact centre, as well as an order that the maternal aunt keep the parents informed of the child’s health and any health issues. On 14 October 2020 a registrar declined to make the orders sought and listed the proceedings before me for judicial case management. At the first court event before me on 16 November 2020, an order was made pending further order that the child live with the maternal aunt. Orders were also made for DCJ to provide to the Court a Personal History Summary relating to the child and that the parties attend upon a Family Consultant for the purposes of the Child Responsive Program. Following the first court event, an Application in a Case was filed by the interveners on 23 December 2021 seeking to be joined to the proceedings and seeking interim orders that they hold parental responsibility for the child and that the child live with them. In the alternative, an order was sought on an interim basis that the child spend defined time with his siblings.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Further, I consider it likely that a court will accept the evidence in relation to impairments in the maternal aunt’s capacity to manage her foster grandchild and for this reason will find that it is unlikely she will adequately protect the child from the harms arising from exposure to (and possibly being subjected to) family violence in her household.Conclusion As explained in the foregoing Reasons, the concerns of the interveners arising from their observations of the maternal aunt’s care and the child’s presentation are the same as the matters of risk identified by the court child expert over the course of her three assessments of the family. When the court child expert first carried out her first full assessment of the relevant parties in March 2021 for the Family Report dated June 2021 she identified many of the risks present in the maternal household but at that stage could not express an opinion about whether the care provided by the maternal aunt to the child was sufficient to protect him from harm and whether the maternal aunt had the capacity to provide for the child’s needs to an adequate standard. Further, at that stage, as the child had a primary attachment relationship with the maternal aunt and an undeveloped relationship with the interveners, the court child expert did not make any recommendations for any immediate change in the child’s parenting arrangements. Her recommendations in the Family Report related to final orders and depended upon the Court’s findings particularly in relation to risk and capacity of the parties to meet the child’s needs. By the time the update Family Report was prepared, the court child expert was able to make recommendations as a result of her own observations and records of agencies produced on subpoena which, for the reasons explained, I consider reliable and weighty. The court child expert was concerned that the child’s needs were so great and likely risks present in the maternal aunt’s care of such a magnitude that she recommended an immediate change in the child’s circumstances along the lines that the interveners had also sought in their application to vary the interim orders. Having regard to all of the foregoing matters and attaching particular weight to the need to protect the child from harm arising from neglect and exposure to family violence and to the capacity of the maternal aunt and interveners respectively, against the background of the unlikelihood of any final decision prior to the end of 2022, I was satisfied that that proposal of the ICL adopted by the interveners was both proper and in the child’s best interests.

Ratio Decidendi

Legal Principle Established

In determining that the interim orders proposed by the ICL and supported by the interveners were proper having regard to the best interests of the children as the paramount consideration, I had regard to the following matters under s 60CC of the Act.The primary considerations – s 60CC(2) The primary considerations, which are contained in s 60CC(2), are:(a)The benefit to the child of having a meaningful relationship with both of the child’s parents;(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents. So far as the children’s meaningful relationships with both parents are concerned, although the meaning of “meaningful relationship” is not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[1] [1] McCall & Clark (2009) FLC 93-405; Mazorski & Albright [2007] FamCA 520 at [26]. The interim orders sought by the interveners provide for the child’s relationship with both parents to be fostered though they do not claim that the relationships with the parents would be considered as meaningful in the sense that is understood by the law. There is no doubt that under the current arrangement, the child’s relationships with both parents are fostered to a greater extent than under the proposal of the interveners but it is yet to be determined whether the child does receive a benefit from having a meaningful relationship with both his parents. In any event, in the circumstances under consideration there is a great need to protect the child from harm arising from being subjected to neglect and exposed to family violence which outweighs the benefit to the child of having a meaningful relationship with both of his parents. This need articulated in the second of the primary considerations is the most salient feature in this application. Although there are limits on making findings at this interim stage in the proceedings there is a long line of authority[2] to the effect that I am required to assess the competing contentions of the parties especially in relation to matters of risk. In assessing the risks of harm arising from neglect and exposure to family violence posed by the maternal aunt and the nature of the harm, I attach significant weight to the assessment of the court child expert. [2] Deiter & Deiter [2011] FamCAFC 82, SS & AH [2010] FamCAFC 13 at [100], George & George [2013] FamCAFC 182, Cimorelli & Wenlack [2020] FamCAFC 58. Although the court child expert’s evidence is yet to be tested, it is based not only on information given by the interveners (consistent with their affidavit) but to a significant extent on the court child expert’s own observations of the child’s physical state which is highly unlikely to change under cross-examination. These observations which are consistent with the evidence of the interveners, are consistent with the child having experienced neglect and are unlikely to be explained by any evidence to the contrary.