Stafford & Perry
[2025] FedCFamC1F 29
•17 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Stafford & Perry [2025] FedCFamC1F 29
File number(s): BRC 14565 of 2024 Judgment of: BRASCH J Date of judgment: 17 January 2025 Catchwords: FAMILY LAW – CHILDREN – CRITICAL INCIDENT LIST – Where maternal grandmother seeks parenting orders – Where no parent available to care for the children – Where children’s mother has passed away – Where children’s father is currently incarcerated charged with a serious offence against the mother –Where father consents to final orders being made in the maternal grandmother’s favour – Where father is permitted to send written communications to the children subject to maternal grandmother withholding any inappropriate or confusing messages Legislation: Family Law Act 1975 (Cth) Part VII, ss 60B, 60CA, 65D, 65DAA, 65DAB Division: Division 1 First Instance Number of paragraphs: 20 Date of hearing: 17 January 2025 Place: Brisbane (via Microsoft Teams) Solicitor for the First Applicant: Ms N. Busby, Life Legal Family Dispute Services The First Respondent: Litigant in person ORDERS
BRC 14565 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS STAFFORD
Applicant
AND: MR PERRY
Respondent
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
17 JANUARY 2025
THE COURT ORDERS BY CONSENT ON A FINAL BASIS:
1.That the children X born in 2014 and Y born in 2023 (“the children”) live with the applicant, Ms Stafford born in 1962.
Major long-term decision making for the children
2.That pursuant to s 61D of the Family Law Act 1975 (Cth), parental responsibility be allocated to the applicant (to the exclusion of the father), for all major long term decision related to the children, including:
(a)The children’s education (both current and future);
(b)The children’s religious and cultural upbringing;
(c)The children’s health;
(d)Requesting that Medicare issue a card/s for the children and claiming Medicare benefits for the children;
(e)Requesting a copy of the children’s birth certificate;
(f)Dealing with NDIS and making any applications required; and
(g)Obtaining a Passport for the children and dealing with the Department of Foreign Affairs and Trade and visa providers.
Service providers
3.That pursuant to s 114Q of the Family Law Act 1975 (Cth), the applicant be granted leave to publish a copy of these Orders to all service providers for the children, including but not limited to the children’s school, treating medical practitioners, any other doctors, therapists, counsellors, government departments, health insurer, passport and visa providers, or, for securing any financial support for the children.
4.That these Orders are authority for the applicant to schedule and consent to treatment, therapy, schooling, programs, services and the like for the children, and to give and receive such information from service providers as a parent would ordinarily receive.
Passports
5.That pursuant to Section 11 of the Australian Passports Act 2005 (Cth), the applicant be hereby authorised to execute all documents necessary to obtain an Australian Passport and travel documents for and on behalf of the children.
Communications from the father
6.That the respondent father be at liberty to send the children birthday cards, Christmas cards and other communications, but the applicant is at liberty to withhold those communications from the children if they may cause upset or confusion.
AND THE COURT FURTHER ORDERS:
7.That in the event any wording in this Order constrains or otherwise fetters the applicant’s ability to deal with service providers for each child, they have liberty to approach chambers by email via (…@...) with an affidavit explaining the problem and proposing a solution, under r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 seeking the relevant amendment/s.
AND IT IS NOTED:
A.That pursuant to s 65DA(2) of the Family Law Act 1975 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 "Parenting Orders - obligations, consequences and who can help" and these particulars are included in these Orders.
B.The material received pursuant to s 67ZBE from the Department of Child Safety, Seniors and Disability Services on 13 January 2025 has been marked as Exhibit 3. An earlier s 67ZBD report has already been marked Exhibit 2.
C.The updated material received pursuant to s 67ZBD from the Queensland Police Service on 13 January 2025 has been marked as Exhibit 4. An earlier s 67ZBD report has already been marked Exhibit 1.
D.Exhibits 1 – 4 indicate family violence occurrences between the mother and father but raise no concerns with the children living with the applicant.
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 Stafford & Perry has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J
These are my Ex Tempore reasons, which I will correct from the transcript for grammatical errors and to make the spoken word more amendable to reading.
I have an application before me from the maternal grandmother, Ms Stafford (“maternal grandmother”), with respect to the children X, born in 2014, and Y, born in 2023 (“the children”).
The respondent is the father, Mr Perry (“the father”). Contrary to, and notwithstanding earlier orders I made, he has not filed any material. Nevertheless, he has appeared today and made some very child focused and appropriate concessions with respect to the orders that I am going to make.
The father is in jail. Initially, he was charged with an offence but that has now been upgraded to a more serious offence. He is accused of a serious offence against the children’s mother, Ms B.
In or about late 2024, the mother was injured and then, a few days later, died. Accordingly, the charges against the father, as I said, have been upgraded.
The reality for these children is that they have now lost their mother and that will be permanent; and, they have lost their father whilst he is incarcerated.
LEGAL PRINCIPLES
I am guided by Part VII of the Family Law Act 1975 (Cth) (“the Act”), which means the children’s best interests are the paramount consideration. Section 65D(1) of the Act provides that this court may make such parenting orders as it thinks proper subject to s 65DAB, which is irrelevant to this matter. Section 60B of the Act sets out the objects of Part VII of the Act, and that is:
(a) to ensure that the best interests of children are met, including by ensuring their safety; and
(b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Section 60CA provides that the children’s best interests are a paramount consideration in making a parenting order. Section 60CC addresses those best interests and provides that:
(1) Subject to subsection (4), in determining what is in the child’s best interest, 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 those matters set out in subsection (3).
On the material before me, there is no indication that the children are Aboriginal or Torres Strait Islander children. The maternal grandmother has ticked ‘no’ to those boxes in her Initiating Application filed on 22 October 2024.
SECTION 60CC(2)
I turn to s 60CC(2) of the Act. Subsection (2)(a) requires [parenting] arrangements which would promote the safety of the children, including safety from being subjected to, or exposed to family violence, neglect or other harm of the children or each person who has care of the children.
There are four Exhibits. Exhibits 1 and 2 are from 25 October 2024, when the matter was first before me. They are reports from the Department of Child Safety, Seniors and Disability Services (“Child Safety”) and the Queensland Police Service. I also have updated reports, which became Exhibits 3 and 4 today. Exhibit 3 is a s 67ZBE report from Child Safety dated 13 January 2025 and Exhibit 4 is an updated s 67ZBD report from the Queensland Police Service also dated 13 January 2025.
In short, all Exhibits go into Child Safety and Police involvement with the mother and father when in a relationship, but each of those reports have no concerns for the children being placed with the maternal grandmother. Indeed, about 10 years ago, X was placed in the maternal grandmother’s care when there was an incident or allegations of a serious offence between the mother and father.
I am satisfied that on the strength of those four Exhibits and what the applicant deposes to, the children’s maternal grandmother will promote their safety.
Subsection (b) is any views expressed by the child. Obviously, Y is far too young to express any views. In material filed yesterday, it seems that X at this point in time, may not wish to engage with his father. But in the circumstances where he has lost his mother and father, and may be a witness in the criminal proceedings, that makes sense. But as the father accepted in our discussions today, the door is always open for X to engage with his father if he wishes, and, I am making orders by consent that the father can send communications to the children, which the maternal grandmother will pass along if they are child-focused and not likely to cause the children confusion. The maternal grandmother has indicated in an affidavit that she will nevertheless hold any documents that might be troublesome to the children and give them to them at a later date.
Subsections (c) and (d) are the developmental, psychological, emotional and cultural needs of the children and the capacity, in this case, of the maternal grandmother to meet those needs. I am satisfied, on the strength of the affidavits the maternal grandmother has sworn, that she is taking all steps necessary to meet the children’s needs. As said, the children’s reality is they have lost their mother and their father, and the maternal grandmother is engaging with X’s school, their General Practitioner and various other service providers to provide them with the support that both children need. I consider the steps she has taken to be child focused; the father agreed on the strength of the summary that I gave him, that she is taking all steps necessary to support the children. Indeed, the maternal grandmother bringing this application for inclusion in the Critical Incident List so she could engage with service providers, is another example of the child focus that she has taken - albeit in the circumstances where she has also recently lost her own daughter.
Subsection (e) is the benefit of the children being able to have relationships with the child’s parents and other people who are significant to the child. For whatever reason (the serious offence charges being just allegations at this point) the children have lost their mother, and with the father incarcerated, they have lost their father at this point. I have explained the effect of s 65DAA of the Act to the father so that, if, for example, he is acquitted down the track or the Office of the Director of Public Prosecutions enter a nolle prosequi, then he would be at liberty to apply and ask the Court to reconsider these final orders; s 65DAA of the Act. It will be for another judge at another time to determine whether that is in the best interests of the children, but as I have explained, the door may not be necessarily or permanently closed upon the father should there be a significant change of circumstance. As I have said, that will be for the discretion of another judge at another time.
Subsection (f) encompasses anything else that is relevant to the circumstances of each child. I consider that finality is important for these children now. The father also finds himself in a difficult situation that, if he did file material, he would expose himself to cross-examination on the circumstances of the mother’s death in this Court, when he has a right to silence, and perhaps he ought better be preserving his position to defend the serious offence charge that he faces rather than dealing with parenting proceedings here. The father rightly and quite appropriately accepted that to be so. In the meantime, the maternal grandmother has her own grief over the loss of her daughter and now has X and Y to effectively and essentially stand in the shoes of their parents and provide supports for them.
As I discussed with the father today, I consider it in the children’s best interests that we finalise the matter today, so he can preserve his right to silence, and so that the applicant grandmother can get on dealing with her own grief and care of the children. I will however, make orders that the father can send communications to them.
ADDENDUM
During the course of giving these reasons, the father asked if photos [of the children] could be sent to his sister and then to him, or, just sent to his sister. As we discussed this idea, the father identified that there were “some weirdos in [prison] here” and then quite appropriately decided photos of the children being sent to the prison might not be the best idea. That was a child focused decision he took. I will, however, leave it for the maternal grandmother as to whether she sends photos of the children to the father’s sister. That will be a matter for her to navigate with regard to what she considers to be in the children’s best interests.
For all of those reasons, including the addendum, I therefore make the orders that I discussed with the father and Ms Busby during the course of these proceedings.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 30 January 2025
0
0
1