Little & Caldwell & Ors

[2018] FamCA 925

FAMILY COURT OF AUSTRALIA

LITTLE & CALDWELL AND ORS [2018] FamCA 925

FAMILY LAW – CHILDREN – Practice and Procedure – Where only the maternal grandmother, mother and the Independent Children’s Lawyer participated in the trial – Where the respondent fathers have been afforded procedural fairness – Where it is appropriate to progress to determination of the proceedings in the absence of the second, third and fourth respondents – Where the maternal grandmother, mother and the Independent Children’s Lawyer reached agreement about the outcome that promotes the children’s best interests.

FAMILY LAW – CHILDREN – Parental Responsibility – Where the mother’s parenting capacity has been compromised for a variety of reasons – Where the presumption of equal shared parental responsibility does not apply to any child because of past family violence and the respondents’ disinterest in the proceedings – Ordered the maternal grandmother have sole parental responsibility for the children

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Where the children have lived with the maternal grandmother for some time – Where the children need protection from the harm they may suffer in the mother’s care by reason of their subjection or exposure to family violence – Where the children have meaningful relationships with the mother from which they derive some benefit – Where the children do not have meaningful relationships with the second, third and fourth respondents – Ordered the children live with the maternal grandmother – Ordered the maternal grandmother determine if, when and how the children spend time and communicate with the mother and the respondents – Injunction restraining the respondents from approaching or communicating with the children

FAMILY LAW – CHILDREN – Change of name – Where the mother and maternal grandmother seek that the children share a common surname – Where the mother, maternal grandmother and the Independent Children’s Lawyer agree the children’s surnames may be changed to match the mother’s surname – Where orders provide for the parties to change the children’s surname.

Family Law Act 1975 (Cth) ss 60CC, 61DA

APPLICANT: Ms Little

FIRST RESPONDENT: Ms Caldwell

SECOND RESPONDENT: Mr Coghlan

THIRD RESPONDENT:	Mr Dooley
FOURTH RESPONDENT:	Mr Gill
INDEPENDENT CHILDREN’S LAWYER:	Legal Aid NSW, Newcastle

FILE NUMBER: NCC 507 of 2014

DATE DELIVERED: 17 September 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 17 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE FIRST RESPONDENT: Not Applicable

SOLICITOR FOR THE FIRST RESPONDENT:	Ms Beckett, Hunter Family Law Centre Pty Ltd
COUNSEL FOR THE SECOND RESPONDENT:	Not Applicable

SOLICITOR FOR THE SECOND RESPONDENT: Not Applicable

COUNSEL FOR THE THIRD RESPONDENT: Not Applicable

SOLICITOR FOR THE THIRD RESPONDENT:	Not Applicable
COUNSEL FOR THE FOURTH RESPONDENT:	Not Applicable

SOLICITOR FOR THE FOURTH RESPONDENT:	Not Applicable
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Boyd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW, Newcastle

Orders

1. All former orders in respect of the following children are discharged:

a.U, born … 2006;

b.V, born … 2007;

c.W,  born … 2010;

d.X, born … 2011;

e.Y, born … 2014; and

f.Z, born … 2017.

1. The maternal grandmother shall have sole parental responsibility for the children.

1. The children shall live with the maternal grandmother.

1. Pursuant to s 68B of the Family Law Act the second respondent, third respondent and fourth respondent are each restrained from attending at or approaching within 100 metres of:

a.The maternal grandmother’s home; and

b.The school, preschool or child care centre attended by any of the children.

1. The parties shall forthwith take all reasonable steps to ensure that the Births, Deaths & Marriages Register kept by the Registrar pursuant to the provisions of the Births, Deaths & Marriages Registration Act 1995 (NSW) is amended so as to disclose the surname of each child as “Caldwell”, and that fresh birth certificates issue in that surname for each child.

1. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

2. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

3. Save as to costs, any and all other outstanding applications are dismissed.

4. No order as to costs.

NOTATIONS

A.These orders intentionally make no provision for the children to spend time or communicate with the mother and biological fathers. If, when and how the children may do so shall be determined by the maternal grandmother as an incident of her sole parental responsibility for the children.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Little & Caldwell and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 507 of 2014

Ms Little

Applicant

And

Ms Caldwell

First Respondent

And

Mr Coghlan

Second Respondent

And

Mr Dooley

Third Respondent

And

Mr Gill

Fourth Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1. These proceedings, under Part VII of the Family Law Act 1975 (Cth) (“the Act”) relating to six children, were commenced in May 2017 by the applicant maternal grandmother (“the maternal grandmother”).

2. The mother of all six children is the first respondent (“the mother”). 

3. The second respondent is the biological father of the two eldest children, born in 2006 and 2007. Those two children are now 12 and 11 years of age. 

4. The third respondent is the biological father of the third and fourth children, born in 2010 and 2011. Those two children are now eight and seven years of age. 

5. The fourth respondent is the biological father of the fifth and sixth children, born in 2014 and 2017. Those two children are now four and one years of age.

6. All six children live with the maternal grandmother and have done for some time. The mother’s parenting capacity has been compromised for a variety of reasons. The proceedings were listed for trial but only the maternal grandmother, the mother and the Independent Children’s Lawyer participated and they reached agreement about the outcome which promotes the children’s best interests. The orders upon which they agreed were recorded in a minute, which was tendered in evidence (Exhibit A).

Procedural fairness

1. The second, third and fourth respondents either failed to participate in the proceedings at all or, alternatively, participated initially but then lost interest. 

2. On 22 March 2018, when some procedural orders were made, the following notations were also made:

   C.The second respondent was formerly served with process in the proceedings (           Notation A made on 14 July 2017) and filed a Notice of Discontinuance on 16 March 2018, albeit that he has never filed a Response in the proceedings.

   D.The third respondent was formerly served with process in the proceedings (Notation B made on 21 September 2017).  He has not filed any Response.

   E.There was no explanation for the non-appearance of the fourth respondent, noting that he filed an Amended Amended Response on 17 September 2017 and was represented at the last Court event before the Registrar on 18 October 2017, although his former solicitor filed a Notice of Ceasing to Act on 21 March 2018.

3. None of the respondent fathers have participated in the proceedings since then. None attended the interviews with the family consultant in May 2018. None appeared at trial today. The two eldest children have not spent any time with the second respondent since 2015 when orders were made in respect of those two children. The middle two children have not spent any time with the third respondent since April 2017. 

4. The two eldest children allege they were sexually abused by the third respondent and the Family Consultant considered there was an abundance of information amongst documents produced on subpoena to strongly suggest both the third and fourth respondents posed an unacceptable risk of harm to the children. The mother believes the third respondent is currently incarcerated either on remand or serving sentences for armed robbery and assault.

5. In September 2017, interim consent orders were made for the fifth child to spend time with the fourth respondent under professional supervision at a contact centre, but the fourth respondent failed to participate in an intake interview at the contact centre. His telephone has since been disconnected and his former solicitor filed a Notice of Ceasing to Act. The Family Consultant reported that documents produced on subpoena suggest he is using illicit drugs and he suffers from deteriorated mental health. The mother deposed she has not seen the fourth respondent since the interim orders were made in September 2017.

6. The evidence demonstrates the second, third and fourth respondents have all been notified of the proceedings and served with process. Their failure to participate at all or sustain their participation in these proceedings is most probably a voluntary choice. They have not been deprived of procedural fairness. I am satisfied it is appropriate for the proceedings to progress to determination in their absence.

Proposal and evidence

1. As already noted, the maternal grandmother, mother and Independent Children’s Lawyer eventually adopted a common position. In essence, they wanted:

   (a)the maternal grandmother to have sole parental responsibility for the children;

   (b)the children to live with the maternal grandmother;

   (c)the maternal grandmother to determine if, when and how the children spend time and communicate with the mother;

   (d)injunctions restraining the third and fourth respondents from approaching or communicating with the children (though no explanation was afforded for why the second respondent was excluded from the proposed injunction); and

   (e)authorisation of the maternal grandmother to change the children’s surnames to “Caldwell” so they all share a common surname with the mother.

2. In support of that proposal, the maternal grandmother, mother and Independent Children’s Lawyer relied upon:

   (a)the affidavit of the maternal grandmother filed on 13 September 2018;

   (b)the two affidavits of the mother filed on 28 August 2017 and 12 September 2018; and

   (c)the Family Report dated 17 May 2018.

3. Neither the maternal grandmother, mother nor Family Consultant were required for cross‑examination.

History

1. On 21 August 2015, final orders were made in relation to the two eldest children. The first child was ordered to live with the maternal grandmother (with whom she has lived ever since) and the second child was ordered to live with the mother. Neither of those children have seen or heard from their father (the second respondent) since then.

2. On 13 November 2015, final orders were made for the fifth child to live with the mother and to spend time with the fourth respondent on a gradually expanding basis. 

3. On 21 July 2016, final orders were made for the third and fourth children to live with the mother and to spend time with the third respondent on a gradually expanding basis. Those orders only operated successfully for a few months because, in September 2016, the mother stopped the third and fourth children from seeing the third respondent as a consequence of his illicit drug use. The evidence suggests the children may have seen the third respondent after that time, but certainly not since April 2017. 

4. In October 2016, the mother was evicted from her home and she resumed her relationship with the fourth respondent, though that was a brief reconciliation.  The mother and the fourth respondent separated again in November 2016 and the mother then stopped the fifth child from seeing the fourth respondent. The fourth respondent failed to avail himself of interim orders, later made in September 2017, allowing the child to spend supervised time with him at a contact centre. 

5. Reports made to the child welfare authority in late 2016 suggested the mother was not then properly attending to the children’s needs and hygiene. The maternal grandmother realised the mother was struggling so she moved (with the eldest child) from Sydney to B Town to offer the mother more assistance.

6. Without intending disrespect, the mother’s chaotic care of the children completely disintegrated in or about December 2016. The second child, who was then just nine years of age, took her younger siblings and led them on foot to the maternal grandmother’s home, where they have been ever since. By then, the mother was pregnant to the fourth respondent with the sixth child. The maternal grandmother notified the child welfare authority of the situation and the mother was content to leave the five children in the maternal grandmother’s care.

7. The maternal grandmother commenced these proceedings in May 2017 and it was not long afterwards, in June 2017, that the sixth child was born. Shortly after his birth, he too began living with the maternal grandmother. Presently, the maternal grandmother and the mother negotiate when and how the children spend time with the mother, but none of the children spend time with their biological fathers. 

Legal principles

1. Orders in respect of children are made under Part VII of the Act, where the meaning of a parenting order is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D) within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

2. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

3. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA), though that presumption may be rendered either inapplicable or rebutted. In the event an order is made allocating equal shared parental responsibility for a child to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents or, alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s interests being the paramount consideration.

Children’s best interests

Section 60CC(2)(a)

1. The first and second children do not see the second respondent and have not done so for over three years. They do not have meaningful relationships with him. 

2. The third and fourth children do not see the third respondent and have not done so for at least 18 months. They do not have meaningful relationships with him. 

3. The fifth child does not see the fourth respondent and has not done so for nearly two years. She does not have a meaningful relationship with him. 

4. The sixth child has never seen the fourth respondent and does not have a meaningful relationship with him. 

5. All six children see the mother regularly and have meaningful relationships with her, from which they derive some benefit, but far less benefit from the meaningful relationships they each enjoy with the maternal grandmother. The children’s relationships with the maternal grandmother are not primarily important under s 60CC(2)(a) of the Act, but are, nonetheless, vitally important as a consideration under s 60CC(3)(b)(ii) of the Act. The Family Consultant reported the children all have strong bonds with the maternal grandmother.

Section 60CC(2)(b)

1. The children have been the subject of considerable trauma in their short lives. The first and second children reported their sexual abuse by the third respondent. The Family Consultant reported they both continue to suffer nightmares, which cause them to wake screaming. Recently, both of those children hacked off their hair close to their scalps. Both are medicated and are under continuing psychiatric care. The first child has been diagnosed with PTSD and Dissociative Disorder. 

2. The Family Consultant reported the children have also been exposed to serious family violence in the mother’s care due to the pattern of her forming relationships with violent partners. Only the sixth child has been spared that experience because he was moved to live with the maternal grandmother within weeks of his birth. All other children presented to the Family Consultant as “significantly traumatised” by reason of their experiences. As a consequence, they have trouble regulating their emotions and exhibit problematic behaviour. The children need protection from the harm they are liable to suffer in the mother’s care by reason of their subjection or exposure to family violence, abuse and neglect. 

Section 60CC(3)

1. The mother lacks the parenting capacity to provide the children with the reparative residential environment they desperately need. The children have made significant progress in the maternal grandmother’s care and they must remain with her so their recovery is not disrupted. The impairment of the mother’s parenting capacity is evident on both physical and emotional levels. She has never cared for all six children on her own at any one time. The mother conceded to the Family Consultant she is ill-equipped to care for the children currently. She lives in shared accommodation and cannot accommodate the children in any event. Her past neglect of their hygiene and her use of illicit drugs were evidence of her inability to meet the children’s physical needs.

2. The children’s emotional disturbance would present significant challenges to any parent, but it is a challenge the mother certainly cannot currently meet. She presented to the Family Consultant with “limited understanding of the complex individual requirements of each of the children”. As the Family Consultant observed, the maternal grandmother is the children’s “only option” if they are to live together as a sibling group. 

3. The maternal grandmother has done a remarkable job caring for the children in the trying circumstances created by the children’s behavioural difficulties and managing the slim margin between her income and household expenses.

Conclusions and orders

1. The presumption of equal shared parental responsibility does not apply because of evidence of past family violence committed by their various parents (s 61DA(2)(b)) but the presumption would be rebutted by the evidence of the respondent fathers’ disinterest anyway (s 61DA(4)). The maternal grandmother should have sole parental responsibility for the children, just as she, the mother and the Independent Children’s Lawyer agreed. The children should also live with the maternal grandmother, just as she, the mother and the Independent Children’s Lawyer agreed.

1. The maternal grandmother will decide, as an incident of her sole parental responsibility for the children, if, when and how they spend time or communicate with the mother and their respective fathers.

2. I accept it would suit the children’s best interests for them not to be surprised by unexpected approaches by their biological fathers, so injunctions will be made to restrain the respondent fathers from approaching the children’s schools, the children’s day care centres and the maternal grandmother’s home.

3. At the moment, the six children share four different surnames between them and it has become an issue – at least for the two eldest children. The mother deposed that the two eldest children have asked the maternal grandfather why their surnames are not the same as other family members. The mother deposed that she considers at least the two eldest children are at an age where they are beginning to understand there is some stigma attached to the children having different fathers. The mother deposed she considered it would be beneficial if all the children have the same surname, as that would promote their sense of belonging to a single family and the sense of “sibling camaraderie”. 

4. In circumstances where none of the children see their biological father and they are unlikely to do so for the foreseeable future, I accede to the logical desirability of the children sharing the same surname to enhance their perception of a stronger sibling association. It would be better for their surname to be common with the mother’s surname rather than with the maternal grandmother’s surname, which the maternal grandmother, mother and Independent Children’s Lawyer all appeared to accept. 

5. For those reasons I make the following orders.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 17 September 2018.

Associate: 

Date:  15 November 2018