Peters and Hennesy and Anor

[2017] FamCA 1165

FAMILY COURT OF AUSTRALIA

PETERS & HENNESY AND ANOR [2017] FamCA 1165

CHILDREN – Undefended hearing – where the mother and father did not attend the hearing – application to review a decision of the registrar to dismiss an application for consent orders – application for parenting orders to be made in the terms of a minute of proposed consent order that was signed by the applicant maternal grandmother and the respondent mother – where the children have a history of being exposed to substance abuse by the parents – where previous final parenting orders did not provide for the children to spend time with the father – application for a variation to the previous final orders and a variation in relation to the children’s time with the mother – order that the children continue to live with the maternal grandmother pursuant to previous orders – orders that the children spend time and communicate with the mother on an alternate weekend and after school on Wednesday – order that in the event that the maternal grandmother is of the view that the mother is affected by drugs at the commencement of time or otherwise becomes aware of the mother behaving inappropriately and causing distress to the children, that time will be suspended.

Family Law Act 1975 (Cth) ss 60CC, 60CC(2)(b)

APPLICANT: Ms Peters

FIRST RESPONDENT: Ms Hennesy

SECOND RESPONDENT: Mr Donald

FILE NUMBER: MLC 10634 of 2007

DATE DELIVERED: 11 December 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 11 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Fisken

SOLICITOR FOR THE APPLICANT:

FIRST RESPONDENT:

Gadens Lawyers

No Appearance

SECOND RESPONDENT: No Appearance

Orders

1. That the applicant have leave to make oral application to seek final orders in the terms of the Minute of Order signed by the applicant and first respondent and dated 30 August 2017 on an undefended basis.

2. That the Application in a Case filed 21 November 2017 be dismissed.

3. That the applicant cause a sealed copy of these orders to be served by registered post on the mother and the father.

IT IS ORDERED in the event that the Department of Health & Human Services does not proceed with any further application with respect to the children X born … 2003 and Y born … 2005 (“the children”) and all Children’s Court of Victoria orders with respect to the children lapse or are discharged, then:

1. That paragraphs 2 to 6 of the Final Orders made on 6 December 2010 be discharged.

2. That the respondent mother spend time and communicate with the children at times to be agreed with the applicant maternal grandmother and in the absence of agreement, as follows:

   5.1During the school term:

   5.1.1From 3.30pm or the conclusion of school on Friday to 6.30pm Sunday each alternate weekend;

   5.1.2From 3.30pm or the conclusion of school to 6.30pm each Wednesday;

   5.2For each of the Term 1, 2 and 3 school holiday periods from the last day of the school term for seven consecutive nights until 5.00pm on the eight day of the holiday period;

   5.3For the long summer holidays, from the last day of the school term for fourteen consecutive nights until 5.00pm on the fifteenth day of the holiday period;

   5.4For X’s birthday, on the Saturday immediately prior to her birthday from 3.30pm to 6.30pm;

   5.5For Y’s birthday, on the Saturday immediately prior to his birthday from 3.30pm to 6.30pm;

   5.6For Z’s birthday, on the Saturday immediately prior to his birthday from 3.30pm to 6.30pm;

   5.7For the respondent mother’s birthday, on the Saturday immediately prior to her birthday from 3.30pm to 6.30pm;

   5.8For Mother’s Day from 10.00am to 6.30pm on Mother’s Day; and

   5.9For Christmas, on Christmas Day from 12.00pm to 6.30pm.

3. That the respondent mother’s time and communication with the children be suspended if the applicant maternal grandmother is of the view that the respondent mother appears to be affected by drugs or similar substance at the commencement of time or otherwise behaves in an inappropriate manner which causes distress to the children or either of them.

4. That the respondent mother keep the applicant maternal grandmother informed of her contact telephone number/s, email addresses and residential address.

5. That unless otherwise agreed all changeover shall occur at the respondent mother’s home, when not otherwise at the children’s school/s.

6. That the applicant maternal grandmother be at liberty to provide a copy of these Final Orders to the children’s school/s.

7. That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

8. That pursuant to s.62DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

9. That all outstanding applications are dismissed.

IT IS NOTED

That paragraphs 1 and 7 of the Final Orders made on 6 December 2010 remain in full force and effect.

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 Peters & Hennesy and Anor 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 MELBOURNE

FILE NUMBER: MLC 10634 of 20017

Ms Peters

Applicant

And

Ms Hennesy

First Respondent

And

Mr Donald

Second Respondent

REASONS FOR JUDGMENT

1. The matter of Peters & Hennesy comes before the Court today in a Judicial Duty List.  The application before the Court is the Application in a Case filed 21 November 2017 in which the applicant seeks orders to review a decision of the registrar made 20 October 2017 to dismiss an application for consent orders filed on 4 September 2017. 

2. Further orders are sought that there be parenting orders made in the terms of a minute of proposed consent order that was signed by the applicant maternal grandmother and the respondent mother, that minute having been signed by those parties and dated 30 August 2017.  The application for consent orders was originally refused by the registrar on the basis that the application for consent orders had not been served upon the father.  That this is so, is confirmed by a letter from the registrar to the applicant, that letter dated 20 October 2017.  The hearing of the application proceeded by way of hearing de novo.

3. At the commencement of the hearing today during the callover, both the first and second respondents were called.  Neither the first respondent mother nor the father answered the call.  Prior to the commencement of submissions in support of the application, both the mother and father were called again.  That was at approximately 10.40am.  Again, neither the mother nor the father answered the call.  Accordingly, leave was sought and granted for the applicant maternal grandmother to proceed on an undefended basis. 

4. As to the question of procedural fairness, submissions were made to the effect that the father was personally served with the application in a case, the Court brochure, and affidavit of the maternal grandmother’s solicitor, Mr C, as well as letters from the Court dated 20 October 2017 and a letter to the father.  Those documents were personally served by a process server, a Mr B, on 30 November 2017.  The father signed an acknowledgement of service.

5. The circumstances of service are confirmed in the affidavit of Mr B which is an affidavit filed 7 December 2017.  I note that the acknowledgement of service signed by the father is annexed to that affidavit. 

6. In addition to having been personally served with those documents, the maternal grandmother’s solicitor forwarded a letter to the father on 13 October 2017.  That letter is annexure JWW-1 to the affidavit of Mr C filed 29 November 2017.  That letter informs the father of the proposed application for consent orders and the minute of orders sought.  It is a letter that invited the father to engage in the proceedings, to sign the minute or, alternatively, informed him of his right to obtain independent legal advice as to the proposed application.  Contact details for the Law Institute of Victoria are provided in the letter to enable the father to access information and advice should he wish to do so.

7. The affidavit of Mr C confirms that the letter to the father was sent by registered post to his last-known address, which I note is the address at which he had been personally served the Court documents that were served by the process server. 

8. Mr C confirms at paragraph 15 of his affidavit that he has been informed by Australia Post that the letter was delivered to Mr Donald on 19 October 2017, and at paragraph 16 of his affidavit, he confirms that he has received no response from Mr Donald or any solicitor purporting to act on his behalf. 

9. Having regard both to the affidavit of service of Mr B and to the affidavit of Mr C, I am satisfied that the father has had notice of the orders sought and, further, that he has had notice of the proceedings listed this day.  I am satisfied that procedural fairness has been afforded to him.

10. The mother has signed the minute of consent order which I am asked to make.  She has also been served by post with the Application in a Case in which the review of the registrar’s decision is sought.  There is an affidavit of service of Ms D, which is an affidavit filed 7 December 2017, which confirms that the mother has been served with the Application in a Case and the affidavit of Mr C.  She has also been provided with a copy of the letter that was sent to the father dated 29 November 2017.  Those documents were served by post on 29 November 2017. 

11. Having regard to the affidavit of service of Ms D, I am satisfied that the mother, too, has been afforded procedural fairness in terms of the current application before the Court. 

12. The orders that I am asked to make today are orders in respect of the parenting arrangements for two children – X who is aged 14 and is a year 8 student at E School, and Y who is 12 years of age and a year 7 student at the same school.

13. The background to the application is as follows.  The children have had a long history of exposure to substance abuse by both of their parents.  As a result the children have lived with the applicant maternal grandmother for much of the time since approximately 2006 when proceedings were first issued by her as a result of her concerns for the children’s welfare in the care of their mother. 

14. Final orders were made in June 2007 that provided that the children live with the mother.  The father did not appear at the hearing at which those final orders were made. 

15. As a result of protective concerns again emerging within a matter of months of those orders being made, on 24 September 2007 the maternal grandmother filed a further application in this Court seeking parenting orders in respect of the two children.  Other than filing a notice of address for service, the father took no part in those proceedings.

16. That application culminated in final orders being made by consent as between the maternal grandmother and the mother by Bennett J on 6 December 2010.  Those orders provided that the maternal grandmother have sole parental responsibility for the long-term care, welfare and development of the children, and that the mother spend time with the children at agreed times on six occasions per year.  That time was to be supervised. 

17. Further orders were made for the children to engage in counselling services.  Significantly, there were no orders made for the children to spend any time with their father as a result of those proceedings. 

18. As the mother’s health seemed to have improved by 2014, the children were returned to live with their mother.  Sadly, from the children’s perspective, and no doubt also from the mother’s perspective, there has been a relapse in her drug use which has affected her health and her capacity to care for the children.

19. In May 2017, the Department of Health and Human Services became involved with the family, they having had significant previous involvement with the family.  There was a protection application issued as a result of drug use by the mother as well as exposure of the children to domestic violence in a setting of the household with the mother and her new partner.  An interim accommodation order was made in May 2017, the effect of which was ensuring that the children were returned to the maternal grandmother’s care. 

20. The Department is on notice as to the current application before the Court.  On 2 October 2017, the Department signed a letter confirming its consent to orders as sought by the maternal grandmother this day.  That letter is annexure JWW-2 to the affidavit of Mr C.

21. The orders that I am asked to make today are essentially a variation to the previous final orders and a variation insofar as the mother’s time is concerned.  The effect of the orders will be to provide the children the opportunity to spend time and communicate with the mother on an alternate weekend basis as well as after school on Wednesday.  It also provides for the mother to spend time with the children both during the term holiday periods as well as the long summer holiday periods, on the children’s birthdays, as well as other significant occasions.  The safeguard included in those orders is that in the event that the maternal grandmother is of the view that the mother is affected by drugs at the commencement of time or otherwise becomes aware of the mother behaving inappropriately and causing distress to the children, that time will be suspended.

22. The children have one constant in their life and that is their maternal grandmother.  The application for final orders confirms that the children live in a comfortable home that is able to provide for all of the children’s needs.  The children have the opportunity of attendance at a private school which is funded by the maternal grandmother.  The children’s health and wellbeing is safeguarded in the care of the maternal grandmother.  The orders sought today will ensure that those arrangements continue.  They will also ensure the children have the opportunity of a relationship with their mother, provided that the mother is in good health and able to provide appropriate care to the children.

23. In determining parenting matters, I have to have regard to the children’s best interests. I must consider all of the relevant factors pursuant to s60CC of the Family Law Act 1975 (Cth) in making an assessment as to what is in the children’s best interests. At the heart of those considerations and a primary consideration pursuant to s 60Cc of the Act is ensuring that the children are protected from physical and psychological harm. The orders as sought by the maternal grandmother achieve that goal. They provide protection for the children from being exposed to the parents’ substance abuse. The orders also provide opportunity for the children to have a meaningful relationship with their mother. They are orders to which the mother has previously given her consent. The father has not sought to participate in the proceedings or be heard in relation to the proposed orders. Having regard to all of those matters, I am satisfied that the proposed orders are appropriate and in the children’s best interests.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 11 December 2017.

Associate:

Date:  11 December 2017