Nieves & Macy
[2023] FedCFamC1F 893
•19 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Nieves & Macy [2023] FedCFamC1F 893
File number(s): SYC 4642 of 2021 Judgment of: MCCLELLAND DCJ Date of judgment: 19 October 2023 Catchwords: FAMILY LAW – CHILDREN – Undefended hearing – Where the applicant mother, second respondent paternal grandmother and the Independent Children’s Lawyer have engaged in mediation and have proposed terms of settlement – Where the first respondent father has disengaged from the proceedings and has not spent time with the child since August 2022 – Where the father has engaged in dysregulated conduct that has exposed the child to family violence – Where it is in the best interest of the child to live with the mother and spend time with the paternal grandmother – Orders made in accordance with the proposal of the applicant mother, second respondent grandmother and the Independent Children’s Lawyer. Legislation: Family Law Act 1975 (Cth) s 60CC Division: Division 1 First Instance Number of paragraphs: 23 Date of hearing: 19 October 2023 Place: Sydney (via videolink) Solicitor for the Applicant: Ms Petkovic, Blanchfield Nicholls The First Respondent: Litigant in person (did not participate) Solicitor for the Second Respondent: Ms Dries, Dries Family Lawyers Solicitor for the Independent Children's Lawyer: Mr Wilkins, Phillip A Wilkins & Associates ORDERS
SYC 4642 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS NIEVES
Applicant
AND: MR MACY
First Respondent
MS B MACY
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
19 OCTOBER 2023
THE COURT ORDERS THAT:
1.All previous orders are discharged.
2.The mother has sole parental responsibility for the child X, born 2013.
3.The child lives with the mother.
4.The child spends time with the second respondent paternal grandmother as agreed between the mother and the paternal grandmother, but failing agreement, as follows:
(a)For two weekends per school term as agreed, but failing agreement, for the weekends following weeks 3 and 7 of each term, from 6.00 pm Friday to 5.30 pm Sunday;
(b)In the Term 1, 2 and 3 NSW school holidays, from 4.00 pm on the middle Sunday of the holiday period to 6.00 pm on the last Saturday;
(c)In the Term 4 Christmas school holidays as agreed, but failing agreement as follows:
(i)In 2024 and each even year, from 4.00 pm on 23 December to 4.00 pm on 6 January, to include the special days of Christmas; and
(ii)In 2023 and each odd year, from 4.00 pm on 30 December to 4.00 pm on 13 January.
(d)Such other times as agreed between the mother and the paternal grandmother.
5.For the purposes of the child’s time with the paternal grandmother in Order 4, the child shall sleep at the paternal grandmother’s residence or such other place where the paternal grandmother shall accompany the child at night.
6.For the purpose of changeover, each party or their nominee shall deliver and return the child to the other party or their nominee at the Suburb C McDonalds at D Street, Suburb C NSW unless otherwise agreed between the parties in writing.
7.The mother facilitate a telephone or video call between the child and the paternal grandmother on the WhatsApp platform each alternate Wednesday, the child's birthday, and Christmas Day at 7.30 pm as follows:
(a)The paternal grandmother shall call the mother’s telephone at 7.30 pm; and
(b)Both the paternal grandmother and the mother shall be restrained from questioning the child about the other party’s household or making derogatory comments about the other or a member of the other party’s family.
8.The paternal Grandmother facilitate a telephone or video call between the child and the Mother on the same special events listed in Order 7, at a time to be agreed, and failing agreement at 7.30pm.
9.The Mother and Paternal Grandmother keep each other informed of their current residential address and mobile phone number and advise the other within 48 hours of any change.
10.In the event of childhood illness or emergency requiring hospitalisation, the person with whom the child is living or spending time when such incident occurs shall contact the other as soon as it is practicable to inform them of same.
11.The mother keeps the paternal grandmother informed of the school that the child is attending, and that the mother and paternal grandmother be at liberty to attend the child’s school for the purpose of any function normally attended by parents and extended family, and to obtain copies of all school reports and other notices normally issued to parents and carers of the child.
12.The father’s application be dismissed.
13.The Independent Children’s Lawyer meet with the child within 28 days and shall thereafter be discharged.
Notations
A.The father has not participated in the proceedings since January 2023. He has failed to file any Amended Response or further material as directed by the Court.
B.The father has not spent any time with the child since approximately 28 August 2022.
C.The father’s time with the child up until that date was supervised by the paternal family in accordance with interim orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nieves & Macy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCCLELLAND DCJ:
These proceedings are between the applicant mother, the respondent father and the second respondent who is the paternal grandmother. They concern applications by the mother and the paternal grandmother for parenting orders in respect to X, aged 10 (“the child”).
The child lives with his mother. He has been in her full-time care since June 2021. For a period subsequent to that time, the child spent periodic time with his father and paternal grandmother. Although, the child has not spent time with his father since 28 August 2022, However, pursuant to arrangements agreed to by the mother and paternal grandmother, the child has spent time with the paternal grandmother and members of the paternal family.
By way of orders made on 13 September 2023, the Court set this matter down for hearing and directed the parties to serve the orders on the father. Orders were also subsequently made for the proposed terms of settlement agreed to by the mother, the paternal grandmother and the Independent Children’s Lawyer (“the ICL”) to be provided to the father. Affidavits of Service have been provided and I am satisfied that the father is aware of the proposed terms of settlement and the fact that the matter has been set down for hearing.
The matter has proceeded on an undefended basis as the father has not appeared today nor has he complied with relevant trail directions in respect to the filing of evidence.
The relevant background is summarised in a chronology prepared by the mother as follows:
1990 The father was born, now aged 33 years. 1993 The mother was born, now aged 30 years. 2009 The parties commenced a de facto relationship. 2013 The parties’ child, X, was born now 9 years of age. 2015 The parties separated. 2016 Father commenced a relationship with Ms E and thereafter relocated to Town F, a town near Town G in NSW. 2017 The Father has a child (H) with Ms E. 22 December 2017 Final parenting orders made in the Federal Circuit Court of Australia following a defended hearing, for the child to live with the father in Town F NSW and spend alternate weekends and half of all school holidays with the mother. Mid-late 2020 The father separated from Ms E. February 2021 Mother initiated mediation following concerns about the child’s care. 6 June 2021 Mother keeps the child in her care. 2021 Mother discovered father was in custody. Mother enrolled the child in local school. 23 June 2021 Mother filed Initiating Application. Mid-2021 Father removed the child from school and took him back to Town F. Mid-2021 Father admitted to J Hospital. 5 July 2021 Urgent hearing before Judge Kemp. Orders made for the child to be returned to the mother’s care that evening. 8 July 2021 Paternal grandmother filed Application. 9 July 2021 Interim hearing before Judge Kemp. 13 July 2021 Orders made by Judge Kemp discharging some of the final orders made in 2017, and for the child to live with the mother and failing any other agreement, to spend supervised time with the father. Paternal grandmother joined as a party. 12 August 2021 Child Inclusive Memorandum 25 November 2021 Legal Aid mediation. Not resolved. 22 April 2022 Listed for hearing of the paternal grandmother’s Application in a Proceeding. All parties represented. Matter resolved by consent and orders made on an interim basis for [the child] to reside with the mother, spend time with the grandmother and for supervised time with the father. 22 November 2022 Paternal grandmother files Response to the Initiating Application. No longer seeks an order that the child live with her. 23 November 2022 Directions hearing before a Judicial Registrar. All parties represented. Directions made for the filing of an Amended Application by the mother, and a Response by the father. 16 December 2022 Mother’s Further Amended Application filed. 17 January 2023 Notice of Withdrawal as Lawyer filed by the father’s former lawyer. No compliance by the father with the directions of 23 November 2022. 13 September 2023 Callover before DCJ McClelland. No appearance by or on behalf of the father.
Mother and paternal grandmother attend FDR with a Deputy Registrar that day and reach an agreement. Final orders signed by the mother, paternal grandmother and the ICL.
Orders and directions made listing the matter for undefended hearing and for service of documents on the father.18 September 2023 Father personally served in accordance with the orders of 13 September 2023. 18 October 2023 No communication from the father still. 19 October 2023 Undefended hearing before Deputy Chief Justice McClelland. EVIDENTIARY MATTERS
In circumstances where the factual assertions set out in the mother’s Outline of Case filed 18 October 2023 are unchallenged, I accept those factual assertions and base my decision on those assertions.
The presumption of equal shared parental responsibility
In terms of parental responsibility, I am satisfied that this is not a matter where the presumption of shared parental responsibility should apply in circumstances where both parties have alleged family violence has occurred between them. The Court notes that even though the presumption does not apply, the Court is still able to make an order for shared parental responsibility if considered appropriate. In this matter, I am satisfied that it is inappropriate. In that respect, the mother and father have no relationship and save for some intermittent text messages, there is no communication between them. I accept that there is no prospect for the father and mother making shared decisions about the child’s long-term welfare. In that respect, I note that the father has effectively disengaged from the proceedings since January 2023.
Best interests of the child
I am satisfied that the orders which provide for the child to live with the mother and spend time with the paternal grandmother are in the child’s best interests. I am satisfied that the orders promote a safe environment for time between the child and the paternal grandmother and will allow the child to retain a relationship with his paternal family. I accept that the mother has endeavoured to promote the child’s relationship with the father and has complied with all previous orders that the child spent with the father, which were to be supervised in accordance with orders made by consent on 22 April 2022. I am satisfied that the paternal grandmother discharged her obligations in accordance with those orders to provide appropriate supervision. Regrettably, the father has not spent any time with the child since approximately 28 August 2022. I further note that there is no current application filed by the father for orders that he spend time with the child or indeed any other parenting orders. I have previously indicated that the father has failed to comply with a direction to do so on 23 November 2022.
Issues of risk
In the evidence provided to the Court, the mother has set out concerns regarding the father’s mental health and treatment that he has periodically received. Of relevance, it is accepted that at times when he has experienced acute mental health episodes, the father has become more dysregulated, unable to control his emotions and has a propensity to engage in angry outbursts. This is evidenced by the mother’s allegations and the fact that the father pleaded guilty to charges of domestic violence related incidents that occurred in 2020 and 2021, in respect to a relationship he entered into with another woman subsequent to the parties’ separation. I further accept that the child was, at least on some occasions, present when some of those acts of violence occurred.
Accordingly, I am satisfied there is an unacceptable risk that, in the unsupervised care of the father in the future, the child would be exposed to an unacceptable risk of witnessing the father’s anger and, potentially, violence perpetrated in those moments of acute mental health episode.
The Court further notes that the mother has also referred to evidence produced by the Department of Communities and Justice that indicated that in September and December 2020, the child’s school reported some concerns regarding his presentation and whether he had been provided with inadequate food to attend school. I note that the concern has not been an issue since the child has been in the mother’s care and the child seems to now be progressing well at school.
Issues relating to the children - their views, level of maturity, culture and relationships
In terms of s 60CC(3)(a) of the Family Law Act 1975 (Cth) (“the Act”), the child inclusive memorandum dated 12 August 2021 records that the child had adjusted well, and he had made positive comments concerning his living arrangements with his mother and his new school.
In terms of s 60CC(3)(b), the Court is satisfied that the child has a close and loving relationship with his mother and his paternal grandmother. Regrettably, at present, the child has little relationship with his father, having last seen his father in August 2022.
Issues relating to the parents - decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility
In terms of s 60CC(3)(c) of the Act, I am satisfied that the mother has engaged in all aspects of the child’s life both prior to and subsequent to separation in terms of providing for his physical, emotional and intellectual needs, including in the periods subsequent to June 2021 when the child came into the mother’s full-time care. In the period subsequent to that occurring, the mother has effectively had sole parental responsibility for making decisions concerning the child. As I have indicated, the father has failed to take the opportunity to spend time with child despite orders having been made for that to occur and he has disengaged from the proceedings.
In terms of s 60CC(3)(ca) of the Act, I am satisfied that the mother has effectively solely provided for maintaining the child and has fulfilled her obligations admirably.
In terms of s 60CC(3)(d) of the Act, there would be no effective change in the child’s current circumstances where the child lives with the mother and currently spends time with his paternal grandmother and members of the paternal family.
In terms of s 60CC(3)(e) of the Act, there are no practical difficulties with the child continuing to live with the mother. The evidence satisfies me that the mother and paternal grandmother have managed to co-operate and communicate with each other about arrangements for the child to spend time with the paternal grandmother since orders were made to that effect in April 2022.
In terms of s 60CC(3)(f) of the Act, the mother has admirably demonstrated her capacity to provide for the needs of the child. Whereas, in circumstances where he has not taken up the opportunity to spend time with the child and he has disengaged from these proceedings, the father, regrettably, has not demonstrated a current parenting capacity that the Court can take note of. The mother accepts that the paternal grandmother has demonstrated the ability to provide for the child’s needs when the child is in her care and prioritised the child’s needs over those of the father.
In terms of s 60CC(3)(g) of the Act, the child is now 10 years old and his level of maturity is taken into consideration insofar as I have noted his wishes.
In terms of s 60CC(3)(i) of the Act, the attitude of the child and the responsibilities of parenthood, I refer to the comments I previously made in respect to s 60CC(3)(f) of the Act, that is, the parties respective parenting capacities.
Issues of family violence
The Court has already indicated the concerns the Court has and the potential for the child to be exposed to the father’s anger and potentially violent conduct in circumstances where there is no evidence before me that the father has taken steps to adequately address those mental health concerns that resulted in that conduct.
Avoiding further proceedings
To their great credit, the mother and the paternal grandmother have participated in settlement negotiations in good faith with the assistance of a registrar and the ICL, and they have reached agreement in respect to appropriate parenting orders. The ICL accepts that the orders agreed to between the mother and paternal grandmother with that assistance, are appropriate. The Court has read the proposed orders.
ORDERS
Accordingly, I am also satisfied that the orders agreed to between the mother, paternal grandmother and the ICL are appropriate and are in the best interests of the child. Accordingly, I make orders in those terms.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 2 November 2023
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