Sitko & Grasso
[2024] FedCFamC1F 911
•19 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sitko & Grasso [2024] FedCFamC1F 911
File number(s): ADC 3403 of 2023 Judgment of: KARI J Date of judgment: 19 December 2024 Catchwords: FAMILY LAW – CHILDREN – Ex Tempore Reasons – Where the second respondent father is a self-represented litigant – Where the third and fourth respondent paternal grandparents are self-represented litigants – Where there has been a lack of meaningful participation in the proceedings by the father and paternal grandparents – Where the father has not been prosecuting his case with due diligence – Where the father’s Response to Final orders is struck out – Where the paternal grandparents have not been prosecuting their case with due diligence – Where the paternal grandparents have not filed any documents in the proceedings – Where there has been an agreement reached between the applicant paternal aunt, respondent mother and Independent Children’s Lawyer as to final parenting arrangements – Where it is in the best interests of the child for the proceedings to come to a conclusion – Where the proceedings are finalised – Final Orders made per the agreement between the applicant paternal aunt, respondent mother and Independent Children’s Lawyer Legislation: Family Law Act 1975 (Cth) Div 12A, s 60CC
Federal Circuit Court and Family Court of Australia Act 2021 (Cth) s 67, s 69
Federal Circuit and Family Court of Australia Family Law Rules 2021 (Cth) r 10.26 and r 10.27
Division: Division 1 First Instance Number of paragraphs: 78 Date of hearing: 19 December 2024 Place: Adelaide Solicitor for the Applicant: Ms Brunacci of DBH Lawyers Solicitor for the First Respondent: Ms Marks of Aboriginal Legal Rights Movement The Second Respondent: Litigant in person The Third and Fourth Respondent: Litigants in person ORDERS
ADC 3403 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SITKO
Applicant
AND: MS GRASSO
First Respondent
MR B SITKO
Second Respondent
MS C SITKO AND MR D SITKO
Third and Fourth Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
KARI J
DATE OF ORDER:
19 DECEMBER 2024
THE COURT ORDERS BY CONSENT OF THE APPLICANT MATERNAL AUNT AND THE INDEPENDENT CHILDREN’S LAWYER BUT NOT WITH CONSENT OF THE SECOND RESPONDENT FATHER AND THIRD AND FOURTH RESPONDENT PATERNAL GRANDPARENTS:
1.The child X born in 2019 (“X”) live with the mother.
2.That the mother have sole decision making and parental responsibility for X with respect to all major long-term issues.
Spends Time With
3.That the child X spends time with the paternal aunt as follows:
(a)Each alternate weekend from 6:00 pm on Friday or the conclusion of school on Friday until 4:00 pm on Sunday, commencing Friday 20 December 2024;
(b)During each short school holiday period, that the paternal aunt’s usual time spending pursuant to paragraph 3(a) herein be extended from 6:00 pm on Friday or the conclusion of school on Friday until 4:00 pm on the following Wednesday;
(c)During the long Christmas school holiday period, that the paternal aunt’s usual time spending pursuant to paragraph 3(a) herein be extended from 6:00 pm on Friday or the conclusion of school on Friday until 4:00 pm on Wednesday for two periods; NOTING THAT the first five night period is to commence on her first alternative weekend in December and the second five night period on her first alternative weekend in January or as otherwise agreed between the parties;
(d)For Christmas as follows:
(i)From 10:00 am until the conclusion of Midnight Mass on Christmas Eve 24 December 2024 and each alternative year thereafter; and
(ii)From 10:00 am on Christmas Eve 24 December 2025 until 10:00 am on Christmas Day 25 December 2025 and each year thereafter;
(e)For Easter as follows:
(i)From 4:00 pm on Maundy Thursday until 4:00 pm Easter Saturday 2025 and each alternative year thereafter;
(ii)From 4:00 pm Easter Saturday 2026 until 4:00 pm Easter Monday and each alternative year thereafter;
(f)From 10:00 am to 4:00 pm on the Saturday in September each year that a Country J national holiday is celebrated; and
(g)At such other times as may be agreed between the parties in writing.
4.That the child X spends time with the paternal grandparents when she is spending time with the paternal aunt as outlined at paragraph 3 to occur in the absence of the father and subject to the terms of the injunctions herein.
5.In the event that Mother’s Day falls on a weekend when the child is in the care of the paternal aunt, the child will spend from 10:00 am until 6:00 pm with the mother on Mother’s Day.
6.The paternal aunt be at liberty to attend the child’s school for events including but not limited to Sports Day, assemblies, end-of-year concerts, Special Person’s Day UPON NOTING that the paternal aunt will not attend Parent Teacher Interviews.
7.The mother will provide the paternal aunt with a copy of X’s school reports within seven (7) days of their release.
8.That the child X spend time with the father upon such terms and conditions, including but not limited to supervision, as shall be determined by the mother in her absolute discretion.
9.Handovers take place between the paternal aunt and the mother at the Suburb G Train Station or such other location as may be agreed between the mother and the paternal aunt in writing, from time to time.
10.The paternal aunt and mother attend alone at handover noting the mother may require the assistance of one person for transport from time to time.
11.That the paternal aunt shall do all things necessary to support and encourage X to refer to the mother as her mother and to the paternal aunt as Ms Sitko including engaging with any counselling services as arranged by the mother to assist X in this regard.
Injunctions
12.That the father be restrained from:
(a)Attending within 100 metres of the mother and the paternal aunt’s places of residence or places of employment;
(b)Attending within 100 metres of X’s kindergarten or school or the venue of any extracurricular activities, medical or allied health professional service providers as may be attended by X, from time to time.
13.That the mother and father be restrained from:
(a)Consuming any illicit substances in the presence of X and for a period of 24 hours prior to X coming into their care;
(b)Consuming alcohol to excess (defined as having a blood alcohol concentration reading in excess of 0.05g%) when X is in their care and for a period of 24 hours prior thereto;
(c)Exposing X to any drug paraphernalia;
(d)Knowingly leaving X unsupervised in the company of any person who has consumed illegal substances or alcohol to excess or allowing any person to do so.
14.All parties are restrained from:
(a)Physically disciplining X or allowing any other person to do so;
(b)Abusing, insulting, denigrating and/or criticising the other or any member of the family or household of the other party in the presence of or within the hearing of X or allowing any other person to do so;
(c)Discussing these proceedings or any allegations made in these proceedings in the presence of or within the hearing of X or allowing any other person to do so;
(d)Posting any information on any social media platform or any other form of media regarding these proceedings, any allegations made in these proceedings, the other party and/or member of the other party’s family or household or allowing any other person to do so.
15.The applicant paternal aunt is restrained from:
(a)Discussing any issues in relation to the allegations of sexual abuse with or in the presence of X and from allowing any other person to do so;
(b)Taking the child for any medical examination whilst the child is in her care;
(c)Allowing X to be brought into contact with the child’s father, Mr B Sitko.
16.In the event of any medical emergency affecting X whilst in the care of the paternal aunt, she shall take X to an emergency department of the nearest hospital or an appropriate medical service provider and do notify the mother immediately who shall thereafter attend to resume responsibility for X’s care and communication with the treating medical practitioners.
THE COURT FURTHER ORDERS THAT:
17.That the First Respondent’s Response to the Application for Final Orders filed by the father on 28 September 2023 be dismissed.
18.The appointment of the Independent Children's Lawyer be discharged.
19.The proceedings otherwise be dismissed as finalised.
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 the pseudonym Sitko & Grasso has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
KARI J:
INTRODUCTION
The proceedings come before the Court today in relation to the parenting arrangements for the child, X, born in 2019. X is five years of age.
The parties to the proceedings are the applicant paternal aunt, the first respondent is X's mother, the second respondent is X's father, and the third and fourth respondents are X's paternal grandparents. The paternal grandparents were joined as parties to the proceedings on 20 October 2023. There has also been an Independent Children's Lawyer (“ICL”) appointed by the Court to represent X's best interests in these proceedings.
The proceedings come before the Court today following a hearing that took place on 6 November 2024. I shall in due course come back to how it was that the proceedings were listed on 6 November 2024 and the circumstances of today's attendance.
Ultimately, however, it is the mutual position of the applicant paternal aunt, the first respondent mother and the ICL that the proceedings be finalised today. Between the three of them, they participated in a dispute resolution conference in July 2024, and they were able to broker and negotiate what are detailed parenting orders to provide for X's living and time spending arrangements, together with a range of associated matters. Those orders are ones that they mutually invite the Court to make today.
They do so in circumstances where they say the father has not meaningfully prosecuted his application in these proceedings and/or that he has not done so with due diligence; he has failed to comply with orders of the court and significantly he did not participate in the dispute resolution conference in July 2024. In relation to the paternal grandparents, and while they were joined as parties to the proceedings in October 2023, the applicant and first respondent say that the paternal grandparents have equally not meaningfully participated in the proceedings, they have not complied with orders of the Court and they too, in all of the circumstances, have not prosecuted the proceedings with due diligence.
For the reasons that follow, it is my considered view that the proceedings ought be finalised today.
I now turn to provide some background to the litigation.
THE LITIGATION
The proceedings were commenced on 27 July 2023 by the paternal aunt in the Federal Circuit and Family Court of Australia, Division 2.
At the same time that these proceedings were commenced, the father simultaneously filed proceedings under a different file number. Ultimately, however, as a result of a direction made by the Court on 31 August 2023, the proceedings commenced by the father were dismissed and the father participated in these proceedings.
At the time that the proceedings were commenced by the paternal aunt she sought, by way of final orders, that she have sole parental responsibility for X and that X live with her and that there be time spending between X and the mother on terms and conditions as agreed and as ordered by the Court and likewise a similar arrangement so far as time spending between X and the father. In addition, orders were sought on an interlocutory basis to provide for X to be delivered up to the paternal aunt.
The mother filed a Notice of Address for Service in the proceedings on 8 August 2023, and the father filed a Notice of Address for Service on 28 August 2023.
The mother filed a Response to Final Orders together with a suite of documents, including her affidavit and Notice of Child Abuse, Family Violence or Risk on 29 August 2023. In her responding documents, the mother sought orders that providing for X to live with her and that she have sole parental responsibility. She also sought orders that the paternal aunt and the father have no time spending with X together with a range of injunctions.
The proceedings came before the Court on 31 August 2023. On that occasion, each of the parties, who at that stage were the paternal aunt, the mother, and the father, were present and they were represented by legal representatives at the hearing. On that occasion, the father was directed by way of orders to file a suite of responding documents.
The father ultimately complied with the orders for the filing of responding documents and filed a suite of documents on 28 September 2023. By way of the Response to Final Orders filed, he sought orders that the paternal aunt have sole parental responsibility for X and that X live with the paternal aunt. He otherwise sought orders that X spend time with each of her parents at such times and on conditions as agreed between the paternal aunt and each of the parties separately. He additionally sought a range of injunctions.
The matter next came before the Court at a hearing on 20 October 2023, at which each of the parties and, by that stage, the ICL who had been appointed, were present. It is understood from the notations made to the orders on 20 October 2023 that the paternal grandparents also attended the hearing. For reasons which are not clear because I do not have the benefit of the transcript or any other information that might have been conveyed orally to her Honour that day, her Honour determined it appropriate to join the paternal grandparents as parties to the proceedings. It is not clear to the Court how it came to be that the paternal grandparents had an awareness about the hearing nor what orders at that stage they were promoting be made in their favour in relation to X's parenting arrangements. Ultimately, however, orders were made for the paternal grandparents to also file a suite of responding documents.
Other than the attendances across yesterday and today, the paternal grandparents have not otherwise participated in these proceedings since the orders were made joining them on 20 October 2023. They did not comply with the orders made that day for the filing of documents, and they have not attended any of the hearings that have taken place since that time. They equally did not participate in the dispute resolution event that occurred in July 2024.
On 27 October 2023 orders were made for the preparation of a family assessment report.
On 4 December 2023, the proceedings were transferred to Division 1 of the Federal Circuit and Family Court of Australia.
The family assessment report was ultimately prepared by Ms K on 4 March 2024 and released to the parties to the litigation.
On 13 March 2024, a judicial registrar made orders for the parties to participate in dispute resolution on 17 July 2024.
The father was not present at that hearing in March 2024. He did not attend the dispute resolution event in July 2024. As I have already indicated, the paternal grandparents were not otherwise at the hearing, and they did not participate in the dispute resolution.
From the father's perspective, the Court understands that his former solicitors filed a Notice of Ceasing to Act in these proceedings on 14 February 2024. As I have indicated earlier, the dispute resolution event to which the mother, the paternal aunt and the ICL attended was successful so far as those three parties brokering a resolution to these proceedings.
The proceedings at that stage, were being dealt with by a judicial registrar of the Court. Quite properly, the judicial registrar was reluctant to make final orders, as promoted by the ICL, the mother and the paternal aunt, when she had knowledge of the father and the paternal grandparents' lack of participation in the proceedings and the dispute resolution event. Accordingly, the judicial registrar properly referred the proceedings to a judge for case management. That judge was me, and orders were made for the proceedings to be dealt with by me on 6 November 2024.
At the hearing on 6 November 2024, the father appeared remotely by Webex. All of the other parties, save the paternal grandparents, were also present and participated in that hearing.
A range of very detailed notations and orders were made by the Court that day to try and ascertain the position of the father and the paternal grandparents in these proceedings, as follows:
UPON NOTING:
A.There appears to be an error in the email address for the father provided in the Notice of Ceasing to Act filed by his solicitors on 14 February 2024.
B.The father has advised the court today that his email address is [...] and he has indicated to the court that this is the email address for which he intends to accept service of all documents in these proceedings.
C.At the conclusion of today’s hearing the associate to the Honourable Justice Kari will provide to the father by email, a blank Notice of Address for Service to enable him to comply with the orders made this day.
D.The father had advised the court today that he has not been in receipt of a copy of the proposed daft Minute of Order agreed between the applicant, the first respondent and the Independent Children's Lawyer.
E.The court has indicated to the father today that in the event that he fails to comply with orders of the court and/or attend any future hearings in the proceedings and/or diligently prosecute his case, then the court shall give consideration in such circumstances to striking out his application in the proceedings and removing him as a party to the proceedings.
F.While the third and fourth respondent paternal grandparents were joined as parties to the proceedings on 20 October 2023, it is unclear to the court whether they have ever been served with any documents in the proceedings.
G.Despite orders made on 20 October 2023 in the presence of the paternal grandparents, they have not complied with orders made that day for the filing of a Notice of Address for Service and/or any responding documents.
H.In the event that the third and fourth respondents do not comply with the orders made herein and/or they do not attend the adjourned hearing and/or they fail to prosecute the proceedings with due diligence, then the court shall without further notice give consideration to removing them as parties to the proceedings.
THE COURT ORDERS:
1.No later than 4.00pm on 7 November 2024 the father do file and serve a Notice of Address for Service.
2.Forthwith the Independent Children's Lawyer do provide by email to the father a copy of the signed draft Minute of Order agreed to between the applicant, the first respondent and the Independent Children's Lawyer as signed on 25 October 2024 (“the proposed final orders”).
3.In the event that the father does not consent to the proposed final orders and the parties have been unable to negotiate a resolution of the proceedings, then and in those circumstances no later than 4.00pm on 29 November 2024 the father do file and serve an Amended Response setting out the final orders he now seeks.
4.Forthwith the applicant do personally serve upon the third and fourth respondent paternal grandparents a copy of their Application for Final Orders filed on 27 July 2023 together with a copy of the proposed final orders agreed to between the applicant, the first respondent and the Independent Children's Lawyer and signed on 25 October 2024 together with a copy of all of the orders made in the proceedings including today’s order.
5.There be an extension of time for the third and fourth respondent paternal grandparents to comply with order 2 of the orders made 20 October 2023 for the filing of responding documents such that those documents be filed and served no later than 4.00pm on 29 November 2024.
6.Forthwith upon service upon the third and fourth respondent paternal grandparents of the documents referred to in paragraph 4 herein, the third and fourth respondent paternal grandparents do file and serve a Notice of Address for Service.
7.The proceedings be adjourned for further case management before the Honourable Justice Kari to 17 December 2024 at 11.00am with such hearing to take place on a face-to-face basis in the Adelaide Registry with the parties to be personally present at the hearing regardless of the status of any legal representation that they have.
So far as compliance with those orders are concerned, the father complied with the requirement to file a Notice of Address for Service. He did so on the same day as the hearing, namely, 6 November 2024. The father, however, has not complied with Order 3 made on 6 November 2024. Equally, the paternal grandparents have not complied with Order 5 of the orders made on 6 November 2024.
The paternal grandparents have, however, filed a brief affidavit of the paternal grandmother. I comment that it does not contain evidence but rather it sets out what they wish to occur in the following terms:
1. Wanting visitation rights with [X] (granddaughter); and
2.As we don't speak and understand English, we would like the courts to provide an interpreter.
The orders made on 6 November 2024 provided for the ICL to provide by email to the father a copy of the draft minute of order agreed between the paternal aunt, mother and the ICL and signed on 25 October 2024. I have had regard to the affidavit of the ICL filed on 4 December 2024, and I am satisfied that the ICL complied with her obligation pursuant to the orders made on 6 November to provide the father with a copy of that document.
I am also satisfied, when regard is had to affidavits of service filed following the hearing on 6 November 2024, that the applicant paternal aunt complied with her obligations to serve various documents in accordance with Order 4 made on 6 November 2024.
The proceedings thereafter came before me yesterday in accordance with Order 7 made on 6 November 2024, albeit that the hearing was moved by a day. All of the parties appeared at yesterday's hearing. It is the position of the applicant paternal aunt, the mother and the ICL that the proceedings be brought to a conclusion. In doing so, they rely mutually on r 10.26 and r 10.27 of the Federal Circuit and Family Court of Australia Family Law Rules 2021 (Cth) (“the Rules”), together with s 69 of the Federal Circuit Court and Family Court of Australia Act 2021 (Cth).
They each propose that the father's Response filed last year be dismissed, that there is no need to strike out any proceedings in relation to the paternal grandparents as they have not sought orders by way of a formal response as ordered they do. They otherwise say that the orders that the three parties in agreement signed in October 2024 be made as they are promoted as being ones in X's best interests.
BACKGROUND TO THE PROCEEDINGS
I pause now to address the background of how it came to be that parenting proceedings are before this Court.
As I indicated earlier, X was born in 2019. At the time of her birth, she was detected with having illicit substances in her system and the Department for Child Protection (“DCP”) became involved, implementing a safety plan which required both of her parents to live with the paternal grandparents for a period of time after her birth and discharge from the hospital.
When X was an infant she was placed in the care of the paternal aunt as a result of care and protection proceedings which resulted in orders being made placing X in the care of the Minister.
The circumstances which led to the involvement of the DCP at that time was that X was presented to H Hospital with a medical condition. This condition was brought about as a result of extremely high levels of illicit substances being detected in her system. At the time, both the mother and the father acknowledged their illicit substance use, but they were unable to satisfactorily explain how it came to be that X, at such a young age had ingested those illicit substances.
As I say, those events resulted in X being placed in the care of the paternal aunt as a result of the involvement of the Department of Child Protection.
X stayed in the care of the paternal aunt from when she was an infant until she was approximately three years of age in late 2022. At that point in time, through heavy involvement by the Department of Child Protection and very significant steps undertaken by the mother, X was reunified with the mother, and since that time she has remained living in the mother's sole care. Arrangements were also made for X to continue spending time with and living with the paternal aunt. Those arrangements continued until the Department of Child Protection stepped back their involvement and around the time these proceedings were commenced.
It was around that time that the paternal aunt in her affidavit material identified that the relationship between the mother and the paternal family had become fractured and ultimately that resulted in a cessation of the paternal aunt's time spending with X in mid-2023.
As I indicated earlier, when the proceedings were commenced by the paternal aunt, she sought a recovery order in relation to X. Ultimately, however, orders were made by the Court on 20 October 2023 which provided for X to live with the mother and to spend regular and certain and frequent time with the paternal aunt. Those arrangements, with some tweaking, have essentially stayed in place since that time.
In addition, pursuant to the orders made on 20 October 2023, a range of orders were made to address what, on any view and as conceded by the father today, were serious risk factors that he presented as a result of his illicit substance use and abuse. Those orders were contained in orders 7, 8, 9, 10, 12, 13 of the orders made that day, which provided for:
7.The father commence counselling in relation to substance abuse issues with [E Counselling] and [F Counselling].
8.The father provide written confirmation from each agency when he has been accepted for counselling with them.
9.The father endeavour to obtain a report confirming his progress in relation to substance abuse counselling with both agencies in due course.
10.The father participate in no more than three (3) random urine drug screen tests as requested by the Independent Children’s Lawyer on the following conditions:
(a)the father do submit to a urine test for the presence of illegal drugs and/or substances and for the purposes of such testing the provision of the urine sample is to be personally supervised and observed by a qualified medical practitioner or their authorised delegate in accordance with the chain of custody protocol specified in AS/NZ 4308:2008;
(b)that the Independent Children’s Lawyer do forward a written request to the father or his legal representatives;
(c)that the father submits to the said tests within 24 hours of receipt of the said written request; and
(d)that the father forward a copy of the results of such tests to the Independent Children’s Lawyer as soon as they become available.
…
12. The mother and father are restrained from:
(a)Consuming any illicit substances in the presence of [X] and for a period of 24 hours prior to [X] coming into their care;
(b)Consuming alcohol to excess (defined as having a blood alcohol concentration reading in excess of 0.05g%) when [X] is in their care and for a period of 24 hours prior thereto;
(c) Exposing [X] to any drug paraphernalia;
(d)Knowingly leaving [X] unsupervised in the company of any person who has consumed illegal substances or alcohol to excess or allowing any person to do so.
13. All parties are restrained from:
(a) Physically disciplining [X] or allowing any other person to do so;
(b)Abusing, insulting, denigrating and/or criticising the other or any member of the family or household of the other party in the presence of or within the hearing of [X] or allowing any other person to do so;
(c)Discussing these proceedings or any allegations made in these proceedings in the presence of or within the hearing of [X] or allowing any other person to do so;
(d)Posting any information on any social media platform or any other form of media regarding these proceedings, any allegations made in these proceedings, the other party and/or member of the other party’s family or household or allowing any other person to do so.
Importantly, aside from various injunctions made to protect X's safety, orders were made requiring the father to undertake some counselling and to provide confirmation that he had done so. In addition, orders were made for the father to participate in random urine drug screen analysis. The Court understands, and the father has acknowledged today, that he has not put evidence before the Court today as to his compliance with those orders. He has made submissions during today's hearing that he has attended the Circle of Security course together with other parenting courses and he has participated in drug and alcohol counselling. It remains, however, that there is no evidence before the Court in relation to any of those matters.
As I indicated earlier, a report was commissioned by the Court and ultimately prepared by family consultant, Ms K, and is dated 4 March 2024. I have had regard to that report. It is considered and detailed, and it sets out the history of this fractured family unit and the various risk factors that X has been exposed to as a result of the conduct of each of her parents.
Ultimately however, Ms K made recommendations that provided for X's relationship with the paternal aunt to effectively be fostered and continued through time spending arrangements.
Recommendations were also made by Ms K in relation to the risk factors presented by the father and the things that he would need to do, to satisfy the Court that those risk factors that he presented were no longer present.
Following the release of that report, as I indicated earlier, the mother, the paternal aunt and the ICL participated in dispute resolution. They have provided to the Court the following proposed minute of agreed orders:
UPON NOTING:
A.The Third and Fourth Respondents were joined as parties to these proceedings on 20 October, 2023.
B.There has been no Notice of Address for Service or responding documents filed by the Third and Fourth Respondent paternal grandparents.
C.Solicitors for the Second Respondent father filed a Notice of Ceasing to Act on 14 February, 2024.
D.The Second Respondent father has not filed a Notice of Address for Service and has not participated in either of the Family Dispute Resolution (FDR) Conferences hosted by the Legal Services Commission (LSC) on 17 May or 25 October respectively.
E.A Child Impact Report was released on 4 March, 2024 which made recommendations.
F.The First Respondent paternal aunt, Second Respondent mother and the Independent Children's Lawyer attended an FDR Conference hosted by the LSC on 17 where a Heads of Agreement was signed which provided for increased periods of time spending between the child and the paternal aunt.
G.A Review FDR Conference occurred on 25 October, 2024 where agreement was reached on Final Orders between the Applicant Paternal Aunt and the First Respondent Mother.
H.The Second Respondent Father has not attended a Court Hearing nor engaged in these proceedings since 20 October, 2023 and has not complied with any Orders pertaining to him.
I.The Third and Fourth respondent paternal grandparents attended the first FDR Conference on 17 May, 2024 with the assistance of a [Country J Language] Interpreter however were unable to participate as they had not filed a Notice of Address for Service or any responding documents as ordered by the Court. They were advised of the terms of the Heads of Agreement reached which were subsequently implemented as between the mother and the paternal aunt. The Third and Fourth respondent paternal grandparents have spent time with [X] whilst she has been in the care of the paternal aunt by informal arrangement. This Order contemplates such time spending will continue on condition that it will occur in the Second Respondent father's absence.
J.The Third and Fourth respondent paternal grandparents did not attend the FDR Conference on 25 October, 2024 and have not attended a Court event since the Interim Defended Hearing on 20 October, 2023.
THE COURT ORDERS ON A FINAL BASIS THAT:
1)The child [X] born […] 2019 (“[X]”) live with the mother.
2)That the mother have sole decision making and parental responsibility for [X] with respect to all major long-term issues.
Spends Time With
3) That the child [X] spends time with the paternal aunt as follows:
a)Each alternate weekend from 6pm on Friday or the conclusion of school on Friday until 4pm on Sunday; commencing Friday, 25/10/2024.
b)During each short school holiday period, that the paternal aunt's usual time spending pursuant to paragraph 3(a) herein be extended from 6pm on Friday or the conclusion of school on Friday until 4pm on the following Wednesday;
c)During the long Christmas school holiday period, that the paternal aunt's usual time spending pursuant to paragraph 3(a) herein be extended from 6pm on Friday or the conclusion of school on Friday until 4pm on Wednesday for two periods; NOTING THAT the first five night period is to commence on her first alternative weekend in December and the second five night period on her first alternative weekend in January or as otherwise agreed between the parties.
d) For Christmas as follows:
i)From 10am until the conclusion of Midnight Mass on Christmas Eve 24 December 2024 and each alternative year thereafter; and
ii)From 10am on Christmas Eve 24 December 2025 until 1Dam on Christmas Day 25 December 20.25 and each alternative year thereafter;
e) For Easter as follows:
i)From 4pm Maundy Thursday until 4pm Easter Saturday 2025 and each alternative year thereafter;
ii)From 4pm Easter Saturday 2026 until 4pm Easter Monday and each alternative year thereafter,
f)From 10am to 4pm on the Saturday in September each year that [a Country J national holiday] is celebrated; and
g) At such other times as may be agreed between the parties in writing.
4)That the child [X] spends time with the paternal grandparents when she is spending time with the paternal aunt as outlined at paragraph 3 to occur in the absence of the father and subject to the terms of the injunctions herein.
5)In the event that Mother's Day falls on a weekend when the child is in the care of the paternal aunt, the child will spend from 10:00am until 6:00pm with the mother on Mother's Day.
6)The paternal aunt be at liberty to attend the child's school for events including but not limited to Sports Day, assemblies, end-of-year concerts, Special Person's Day UPON NOTING that the paternal aunt will not attend Parent Teacher Interviews.
7)The mother will provide the paternal aunt with a copy of [X]'s school reports within seven (7) days of their release.
8)That the child [X] spend time with the father upon such terms and conditions, including but not limited to supervision, as shall be determined by the mother in her absolute discretion.
9)Handovers take place between the paternal aunt and the mother at the [Suburb G] Train Station or such other location as may be agreed between the mother and the paternal aunt in writing, from time to time.
10)The paternal aunt and mother attend alone at handover noting the mother may require the assistance of one person for transport from time to time.
11)That the paternal aunt shall do all things necessary to support and encourage [X] to refer to the mother as her mother and to the paternal aunt as [Ms Sitko] including engaging with any counselling services as arranged by the mother to assist [X] in this regard.
Injunctions
12) That the father be restrained from:
a)Attending within 100 metres of the mother and the paternal aunt's places of residence or places of employment;
b)Attending within 100 metres of [X]'s kindergarten or school or the venue of any extracurricular activities, medical or allied health professional service providers as may be attended by [X], from time to time.
13) The mother and father be restrained from:
a)Consuming any illicit substances in the presence of [X] and for a period of 24 hours prior to [X] coming into their care:
b)Consuming alcohol to·excess (defined as having a blood alcohol concentration reading in excess of 0.05g%) when [X] is in their care and for a period of 24 hours prior thereto;
c) Exposing [X] to any drug paraphernalia;
d)Knowingly leaving [X] unsupervised in the company of any person who has consumed Illegal substances or alcohol to excess or allowing any person to do so.
14) All parties are restrained from:
a)Physically disciplining [X] or allowing any other person to do so;
b)Abusing, Insulting, denigrating and/or criticising the other or any member of the family or household of the other party in the presence of or within the hearing of [X] or allowing any other person to do so;
c)Discussing these proceedings or any allegations made in these proceedings in the presence of or within hearing of [X] or allowing any other person to do so;
d)Posting any information on any social media platform or any other form of media regarding these proceedings, any allegations made in these proceedings, the other party and/or member of the other party's family or household or allowing any other person to do so.
15) The Applicant paternal aunt is restrained from:
a)Discussing any issues in relation to the allegations of sexual abuse with or in the presence of [X] and from allowing any other person to do so;
b)Taking the child for any medical examination whilst the child is in her care;
c)Allowing [X] to be brought into contact with the child's father, [Mr B Sitko].
16)In the event of any medical emergency affecting [X] whilst in the care of the paternal aunt, she shall take [X] to an emergency department of the nearest hospital or an appropriate medical service provider and do notify the mother immediately who shall thereafter attend to resume responsibility for [X]'s care and communication with the treating medical practitioners.
17) The appointment of the Independent Children's Lawyer is hereby discharged.
18) That all outstanding applications be dismissed as finalised.
(As per the original)
THE LEGAL PRINCIPLES
Turning to the relevant legal principles.
Rule 10.26 and rule 10.27 provide:
10.26 When a party is in default
(1) For the purposes of rule 10.27, an applicant is in default if the applicant fails to:
(a) comply with an order of the court in the proceeding; or
(b) file and serve a document required under these Rules; or
(c) produce a document as required by Division 6.2.2; or
(d) do any act required to be done by these Rules or the Family Law Regulations; or
(e) prosecute the proceeding with due diligence.
(2) For the purposes of rule 10.27, a respondent is in default if the respondent fails to:
(a) give an address for service before the time for the respondent to give an address has expired; or
(b) file a response before the time for the respondent to file a response has expired; or
(c) comply with an order of the court in the proceeding; or
(d) file and serve a document required under these Rules; or
(e) produce a document as required by Division 6.2.2; or
(f) do any act required to be done by these Rules or the Family Law Regulations; or
(g) defend the proceeding with due diligence; or
(h) prosecute with due diligence any application the respondent has made in the proceeding.
10.27 Orders on default
(1) If a party is in default, the court may do any of the following:
(a) order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the party;
(b) set aside a step taken or an order made;
(c) order that a step in the proceeding be taken within the time limited in the order;
(d) order costs;
(e) prohibit the party from taking a further step in the proceeding until the occurrence of a specified event;
(f) make any order that is to take effect if the party does not take a step ordered by the court in the proceeding in the time limited in the order;
(g) proceed on the non‑defaulting party’s evidence together with:
(i) if considered appropriate by the court—such evidence as the defaulting party has filed; and
(ii) such evidence as tendered during cross‑examination by the defaulting party; and
(iii) submissions by either party limited to the matters that are the subject of evidence;
(h) in exceptional circumstances—proceed on the non‑defaulting party’s evidence without hearing from the defaulting party.
(2) The court may make an order of the kind referred to in subrule (1), or any other order, or may give any directions, and specify any consequences for non‑compliance with the order, that the court thinks just.
I have also had regard to section 69 of the Federal Circuit Court and Family Court of Australia Act 2021 (Cth), which provides:
69Power of the Federal Circuit and Family Court of Australia (Division 1) to give directions about practice and procedure in a civil proceeding
(1) The Federal Circuit and Family Court of Australia (Division 1) or a Judge may give directions about the practice and procedure to be followed in relation to a civil proceeding, or any part of a civil proceeding, before the Court.
(2) Without limiting subsection (1), a direction may:
(a) require things to be done; or
(b) set time limits for the doing of anything, or the completion of any part of the proceeding; or
(c) limit the number of witnesses who may be called to give evidence, or the number of documents that may be tendered in evidence; or
(d) provide for submissions to be made in writing; or
(e) limit the length of submissions (whether written or oral); or
(f) waive or vary any provision of the Rules of Court in their application to the proceeding; or
(g) revoke or vary an earlier direction.
(3) If a party fails to comply with a direction given by the Federal Circuit and Family Court of Australia (Division 1) or a Judge under subsection (1), the Court or Judge may make such order or direction as the Court or Judge thinks appropriate.
(4) In particular, the Federal Circuit and Family Court of Australia (Division 1) or Judge may do any of the following:
(a) dismiss the proceeding in whole or in part;
(b) strike out, amend or limit any part of a party’s claim or defence;
(c) disallow or reject any evidence;
(d) award costs against a party;
(e) order that costs awarded against a party are to be assessed on an indemnity basis or otherwise.
(5) Subsections (3) and (4) do not affect any power that the Federal Circuit and Family Court of Australia (Division 1) or a Judge has apart from those subsections to deal with a party’s failure to comply with a direction.
(Note omitted)
I have additionally had regard to the overarching purpose contained in s 67 of the Federal Circuit Court and Family Court of Australia Act 2021 (Cth) as mirrored in the Rules, which provides:
67 Overarching purpose of civil practice and procedure provisions
(1) The overarching purpose of the civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 1), is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
Note 1:For civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 1), see subsection (4).
Note 2:The Federal Circuit and Family Court of Australia (Division 1) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.
(2) Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1);
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3) The civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 1), must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4) The civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 1), are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b) any other provision made by or under this Act, or any other Act, with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 1).
(Emphasis in original)
I am also cognisant of, and have regard to the principles for conducting child-related proceedings contained in Division 12A of the Family Law Act 1975 (Cth) (“the Act”) which provide:
s 69ZN Principles for conducting child-related proceedings
Application of the principles
(1) The court must give effect to the principles in this section:
(a) in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and
(b) in making other decisions about the conduct of child‑related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2) Regard is to be had to the principles in interpreting this Division.
Principle 1
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) the parties to the proceedings against family violence.
Principle 4
(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.
Principle 5
(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Finally, I have otherwise had regard to those factors relevant to making parenting orders in the child's best interest as contained in s 60CC of the Act:
Determining child’s best interests
(1)Subject to subsection (4), in determining what is in the child's best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b)if the child is an Aboriginal or Torres Strait Islander child--also consider the matters set out in subsection (3).
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(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.
(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.
Additional considerations--right to enjoy Aboriginal or Torres Strait Islander culture
(3)For the purposes of paragraph (1)(b), the court must consider the following matters:
(a) the child's right to enjoy the child's Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:
(i)to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and
(ii)to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(iii) to develop a positive appreciation of that culture; and
(b)the likely impact any proposed parenting order under this Part will have on that right.
…
DISCUSSION
I am satisfied, as a result of the history that I have just identified, that the father has not complied with orders and a range of orders made in these proceedings. His non-compliance includes non-compliance with the orders made in October 2023, together with the orders made on 6 November 2024.
I am additionally satisfied that the father has not prosecuted these proceedings with due diligence. Together with his non-compliance with orders, he has not attended hearings before the Court since his solicitor ceased acting for him in March and July 2024, and he did not participate in the family dispute resolution that occurred in July 2024. I accept, however, that he did appear at the hearing on 6 November 2024 before me and in yesterday's and today's hearings.
The father has indicated to the Court that he, as a self-represented litigant who does not understand the legal system, is at a disadvantage and that he wishes to obtain legal representation.
While all of those matters may well be so, the father has had knowledge of these proceedings since their commencement. At the commencement of proceedings he was able to obtain legal representation and he filed responding material as ordered. Against this background, it is however not clear to the Court why it is that the father did not actively seek to obtain information from any of the parties or the ICL or the Court as to the progress of the proceedings once his legal representatives ceased acting for him in February 2024.
I am not satisfied on the submissions that I have heard today that the father has meaningfully attempted to engage in the proceedings once his solicitors ceased acting for him.
I am equally satisfied that the paternal grandparents have not complied with the orders made by the Court in these proceedings. Those orders include the orders made on 20 October 2023 and the orders that I made on 6 November 2024. I am equally satisfied that they too have not prosecuted the proceedings at all, let alone with due diligence.
As a result of my satisfaction in that regard, it is open to me to deal with the matter in any of the ways provided for in r 10.27 of the Rules. Additionally, it is open to the Court to deal with the matter in any of the ways as provided for in s 69 of the Federal Circuit Court and Family Court of Australia Act 2021 (Cth). There is some overlap in that regard.
I have come to the considered view, in light of all of the information before the Court and while not a parenting order, that it is in X's best interests that these proceedings come to a conclusion.
In doing so, it is my considered view that the appropriate course of action today is to dismiss the father's response filed in these proceedings on 28 September 2023.
It is equally my considered view that these proceedings should come to a conclusion in the terms as promoted by the mother, the paternal aunt and the ICL.
In doing so, I have had regard to s 60CC of the Act.
In that regard, I have already identified how it is that this family unit came to be before the Court. It is my considered view, in light of that background that parenting arrangements need to be made for X that provide for her safety.
I am cognisant of the circumstances which led to considerable effort undertaken by the mother in righting the risk factors that she presented and in maintaining a relationship between X and the paternal family, ultimately through the paternal aunt. I am satisfied that in doing so the mother has taken steps that promote X's safety and best interests.
In that regard, the paternal aunt is also to be commended. She stepped into the breach for X at a time when her two parents were unable to do so because of their own very significant drug, alcohol and substance use and abuse. She remained the person that provided primary care for X for a period of over two and a half years. Clearly, at that juncture, and on an ongoing basis, the paternal aunt has established that she is able to meet X's needs in every way.
Equally, as I indicated earlier, the mother, to her credit, has satisfied me that following her rehabilitation, she is also able to do so.
It is my view that where safety and risk factors are concerned, that at this juncture neither the mother nor the paternal aunt present with any risks in relation to X. The arrangements that have been implemented and which are proposed by each the mother and the paternal aunt, as supported by the ICL, provide for a range of things; not just X's safety and the meeting of her needs, but they also ensure that the arrangements ensure that X maintains a connection to her paternal family.
I accept that that is not the manner in which the father, nor seemingly the paternal grandparents, might have promoted that connection to have been maintained. However, it must be said that, given the issues that I have earlier identified so far as the father's risk factors and his lack of engagement in these proceedings, together with the comments I have made in relation to the paternal grandparents' lack of engagement in these proceedings, regrettably it appears that they have not taken steps to prosecute their position in these proceedings and obtain parenting orders in relation to X.
The orders that are proposed, I am satisfied, meet X's needs, as I said, in every way. They meet her developmental needs, her psychological needs, her emotional needs, and her cultural needs.
I have had regard to the proposed arrangements so far as they maintain X's relationship with each of her parents and those who are significant in her life. The orders provide for X to spend time with the father and the paternal grandparents effectively on terms determined by the mother provided that she is satisfied that X will be safe and secure in any of those arrangements. It is clear that despite the inability of the father or the paternal grandparents to meaningfully engage in these proceedings, that the mother remains open to promoting a relationship between X and the father and the paternal grandparents, as does the paternal aunt, provided that those arrangements are safe and secure. I highlight the words "safe" and "secure" because the father should be under no misapprehension that he has not satisfied the Court to date that he presents as a safe and secure environment for X to have a relationship with him.
I understand that both the father and the paternal grandparents are quite distressed as a result of these proceedings and the fracturing of relationships in the paternal family. It is clear to me that throughout the course of both yesterday and today's hearing that that distress is shared by the paternal aunt and the mother, all of whom have been visibly crying and distressed across both hearings yesterday and today.
So far as X's views are concerned, she is at this stage too young to express her views in a fashion with which the Court would give any weight. Having said that, however, the ICL has discharged her obligations as of 25 October 2024 to meet with X and give her the opportunity to express those views.
For all of the reasons that I have just identified, I am satisfied that the parenting arrangements that have been proposed by the mother, the paternal aunt and the ICL are orders that are in X's best interests.
In coming to my conclusion to deal with the matter in the manner in which I have earlier foreshadowed, as I have earlier indicated, I have also had regard to the principles for conducting child-related proceedings.
In particular, it is my concerted view that it is not in X's best interests to have these proceedings continue indefinitely particularly where the father and the paternal grandparents have not meaningfully participated in the proceedings.
In addition, it is my view that the orders that are being promoted are ones that promote a cooperative and child-focused parenting arrangement for X, including one that keeps her safe from harm.
These proceedings have been before the Court for some time now and at least in the last 12 or so months they have proceeded in circumstances where both the father and the paternal grandparents have not engaged.
As these orders bring the proceedings to a conclusion, I take the opportunity to implore the parties to restore their fractured relationships. I echo the comments made during the submissions of the ICL. The distress that has been displayed throughout yesterday and today's hearing make it clear to me that, if nothing else, there is a lot of love for a little girl who needs people to step up to the plate and appropriately and safely provide for her needs in every way.
NOTE:
These reasons have been corrected from the transcript. Topic headings have been inserted and grammatical errors have been corrected. In addition amendments have been made to make the orally delivered reasons clear and easy to read.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 23 January 2025
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