Thackeray and Barlow and Anor

FEDERAL CIRCUIT COURT OF AUSTRALIA

THACKERAY & BARLOW & ANOR

[2016] FCCA 651

Catchwords:
FAMILY LAW – Interim parenting – Department of Family & Community Services acted under emergency jurisdiction and removes child – Department obtains no Court order – Department refuses invitation to intervene – jurisdiction of Court considered.

Legislation:

Family Law Act 1975, ss.60CC, 65C, 91B

Applicant:

MR THACKERAY

First Respondent:

MS BARLOW

Second Respondent:

MS TEAL

File Number:

PAC 2814 of 2009

Judgment of:

Judge Dunkley

Hearing date:

8 March 2016

Date of Last Submission:

8 March 2016

Delivered at:

Parramatta

Delivered on:

14 March 2016

REPRESENTATION

Counsel for the Applicant:

Mr D. Blackah

Solicitors for the Applicant:

Vertias Law Firm

Solicitors for the First Respondent:	Ms N Michaels of Armstrong Legal
The Second Respondent appeared in person
Solicitors for the Independent Children's Lawyer:	Ms B Jarman of Mills Oakley

ORDERS

PENDING FURTHER ORDER:

All prior parenting orders are suspended.
The father shall have sole parental responsibility for X born (omitted) 2009 subject to order 7 hereof.
X shall live with the father.
X shall spend time with her Maternal Aunt by agreement between the father and maternal aunt.
X shall spend such time and communicate with her mother by agreement between the father and mother once a report has been obtained from the mother’s treating psychiatrist that her mental health would not create a risk for nor compromise X’s care if she were to spend time with her mother.
To give effect to order 3, the father shall collect X at the end of the school day on 14 March 2016 from (omitted) Public School.
X shall continue to attend (omitted) Public School and the father is restrained from removing her enrolment from that school.
The father is to arrange as soon as possible for Dr L to engage with X for the purposes of family therapy and he is to meet the costs of that family therapy.

THE COURT FURTHER ORDERS:

Leave is granted to Independent Children’s Lawyer to apply to relist this case in consultation with my chambers on not less than 72 hours’ notice.
Grant leave to the solicitors for the 1^st Respondent to apply to relist this case in consultation with my chambers 7 days after provision of a report by the mother’s treating psychiatrist to each party in these proceedings.
A copy of these orders is to be provided today to the Principal of (omitted) Public School by the Independent Children’s Lawyer.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report.
The Family Report to deal with the following matters:
(a)Any views expressed by the child the subject of parenting orders sought in this case, provided that the child shall not be required to express a view in relation to any matter.
(b)The nature of the relationships of the child with each of the child’s parents and with significant other persons.
(c)The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
(d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of the parents: or
(ii)any other child, or significant person, with whom the child has been living.
(e)The practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
(f)The capacity of each parent, or another person, to provide for the needs of the child, including emotional and intellectual needs.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other children and of either of the child’s parents and any other characteristics of the child that the reporter thinks are relevant.
(h)Each parent’s attitude to the child and to the responsibilities of parenthood.
(i)Any family violence involving the child or a member of the child’s family.
(j)Such other issues as the Family Consultant considers relevant.
The Family Consultant is requested to complete the report not less than 4 weeks before the directions hearing date 2 December 2016.
The parties shall attend all appointments with the Family Consultant and shall ensure the subject child attend all appointments with the Family Consultant, as requested by the Family Consultant
The Family Consultant may inspect the Court file and any documents produced on subpoena to which no objection has been lodged.
Upon the report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child to whom these proceedings relate:
(a)A Children’s Court;
(b)A child protection authority;
(c)A State or Territory Legal Aid Authority; and
(d)A convener of any legal dispute resolution conference.
Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
This case is listed for further directions at 11.30am on 2 December 2016 consequent on the release of the family report.

IT IS NOTED that publication of this judgment under the pseudonym Thackeray & Barlow & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2814 of 2009

MR THACKERAY

Applicant

And

MS BARLOW

First Respondent

MS TEAL

Second Respondent

REASONS FOR JUDGMENT

Mr Thackeray, the father and Ms Barlow, the mother, are the parents of X, age 7. X was born on (omitted) 2009. The father and mother have been engaged in family law proceedings relating to X on and off since June 2009.
On 19 August 2009, pending further order, it was ordered that X live with the mother. The father spend time with X each Tuesday from 3pm to 6pm, commencing on 25 August 2009; each Thursday from 3pm on to 6pm, commencing on Thursday 20 August 2009; each Sunday from 10am until 3pm, commencing 23 August 2009; on Christmas Day from 8am until 12 noon on Easter Saturday from 11am to 4pm at such other times as agreed between the parties.
There were orders facilitating X’s attendance with an ear, nose and throat specialist. Changeovers were covered by an order and orders relating to enrolment at day care were made. The use of a communication book was ordered. Various other orders were made concerning the exchange of information. The case was then listed for a two day final hearing at 10am on 10 May 2010, that is, nine months after those orders were made. To be ready for that hearing a family report pursuant to section 62G was ordered and trial and filing directions were otherwise made.
In March 2010 the family report that was ordered was released. That family report recommended that X’s time with her father be gradually increased so that by two years of age she would spend three weekends per month with the father, with two of those weekends being for two nights and one weekend being for one night and that X would also spend Wednesday afternoons with the father.
On 10 May 2010, in the course of the final hearing, the parties consented to final parenting orders.
It was ordered by consent that the parties have equal shared parental responsibility of X, that X live with the mother and that she spend time with her father with incremental increases in time so that from the date of the orders of 10 May 2010 until 1 July 2010 she would spend time with her father from 4pm after school or day care until 7pm each Tuesday. And from 4pm after each school day until 7pm Thursday, and from 9am to 6pm each Sunday.
As and from 1 July 2010 until X reaches two years of age – that she would spend time with her father on a four week cycle in week one from 5pm on Saturday to 5pm on Sunday. In week 2, from 5pm on Saturday until 5pm on Sunday. In week 3, from 5pm on Saturday to 5pm on Sunday, and each Wednesday from 4 pm until 7pm.
That upon X reaching two years of age – that she would spend time with her father on a four week cycle as follows. In week 1, from 5pm Friday until 5pm Sunday. On week 2, from 5pm Saturday to 5pm Sunday. And in week 3, from 5pm Friday to 5pm Sunday. Each Wednesday from 4pm to after school, or after school until 7pm.
Orders were made for X during Christmas holiday periods in 2010 to spend time with her father for a block period of three days. In 2011 for a block period of five days. In 2012 for a block period of 10 days, and in 2013 for a block period of 10 days. And for the first half of the Christmas school holiday period in even numbered years commencing in 2014.
Various other facilitatory orders were also made.
In effect, the parties had considered the final family report in coming to those arrangements.
On 15 February 2011 by consent in chambers the parties sought an amendment to the orders by discharging order 7 made on 10 May 2010.
Order 7 was an order for changeover. Otherwise, the earlier orders were confirmed, and the case was then removed from the list of cases awaiting finalisation. Thereby, the litigation came to an end.
On 17 July 2015, that is four and a half years later, the father filed a contravention application.
On 9 September 2015, as part of the contravention proceedings, the following orders were made:
·Parenting orders dated 15 February 2011 are suspended until further order.
·That the child, X, live with the mother.
·That the child spend time with the father for a period of four weeks, commencing Wednesday 16 September 2015 and each Wednesday after school until the commencement of school the next morning on Thursday.
These periods of time were to continue throughout gazetted school holidays.
It was also ordered that for the periods of time X spends with the father, both X and the father shall sleep at the paternal grandmother’s home.
Further time with orders and communication orders were made.
Additionally orders were made for parties to attend a Triple P program.
Orders were also made for the parties to arrange family therapy.
The parties were also to ensure that X is only exposed to age appropriate media and television.
The case was next listed for directions on 24 February 2016.
On that date there was on the court file a letter from Department of Family and Community Services.
That letter became exhibit A in these proceedings.
The general tenor of that letter, in summary, was that as a result of the department becoming aware of communications between Ms Barlow and X’s school principal the department had determined that they would intervene into the life of the family.
On 17 February 2016, with the assistance of the New South Wales Police and with paramedics available, entry was forced into Ms Barlow’s home. Family and Community Services then removed X and placed her in the care of the maternal aunt, Ms Teal.
They did so for the reasons summarised in exhibit A.
It would appear exhibit A had its germination as a result of the conversations between Ms Barlow and the principal of (omitted) Primary School on 15 February 2016. The principal, as a mandatory reporter, it seems contacted the Department of Family and Community Services, such was her concerns as to the presentation of the mother. That the Department of Family and Community Services, having received the report from the school principal, properly acted on the report, considering X to be at risk and pursuant to powers available to the Department to act urgently.
The mother was, as a result of the intervention of Family and Community Services, the police and paramedics, taken to a mental health facility. She was discharged. She readmitted herself at a different mental health facility as an inpatient. She remains an inpatient in a mental health facility.
On 24 February 2016 having considered exhibit A and having heard brief submissions from the legal representatives for Mr Thackeray and Ms Barlow it was ordered:
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
1.All prior parenting orders are suspended.
2.Pursuant to section 68B, MS BARLOW is restrained from being in the presence of or having the care of or approaching or communicating with the child X born (omitted) 2009.
3.In the event that MS BARLOW does not comply with order 2, and a police officer believes, on reasonable grounds, that the injunction has been breached, then such police officer is authorised to arrest the MS BARLOW without warrant pursuant to the provisions of section 68C of the Family Law Act 1975 (Cth).
FURTHER, THE COURT ORDERS:
4.Pursuant to Section 68L of the Family Law Act an Independent Children’s Lawyer is appointed for X, born (omitted) 2009 and request the Legal Aid Commission of NSW to provide such representation.
5.The parties are to provide to the Legal Aid NSW (Sydney Office) forthwith all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports.
6.The Registry Manager is requested to forward to Legal Aid NSW a copy of this order together with a copy of the letter marked as Exhibit A - Letter from Family & Community Services dated 22 February 2016.
7.Pursuant to Section 91B of the Family Law Act 1975 (Cth), it is requested that the Department of Family and Community Services, NSW, intervene in these proceedings in relation to the child X born (omitted) 2009.
8.The Court at the request of the Department is to provide to the Department of Family and Community Services forthwith all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports.
9.This case is listed for further directions and/or interim hearing at 9.30am on 8 March 2016 at the Federal Circuit Court, 1-3 George Street Parramatta.
10.The Registry is to cause any Initiating Application filed by Mr Thackeray to be made returnable at 9.30am on 8 March 2016. Any Initiating Application is to join as a respondent the maternal aunt Ms Teal.
11.Leave is granted to the parties and their legal representatives to inspect material produced in answer to subpoena by NSW Police and Medicare.
12.Grant leave to the applicant’s solicitors to obtain a short return date in respect to subpoena to be issued to NSW Police, NSW Ambulance Service, (omitted) Hospital and (omitted) Public School.
13.Grant leave to solicitors for Mr Thackeray to issue more than 5 subpoena.
14.Grant leave to solicitor for the mother to provide to any psychology, psychiatrist or doctor treating the mother a copy of the letter from Family & Community Services dated 22 February 2016.
15.Grant leave to all parties including the Independent Children’s Lawyer to apply for a relisting of this case in consultation with my chambers on 24 hours’ notice.
On 8 March 2014 Ms Barlow was still an inpatient in a mental health facility.
Her admitting and treating psychiatrist is Dr S, whose report dated 5 March 2016 is exhibit 1 in the interim hearing. It read as follows:
I prepared this report for Ms Barlow in capacity of being her treating psychiatrist in the (omitted) Clinic, the mental health unit of the (omitted) Hospital.
I have not seen her in the context of preparing this report, however, towards the end of the admission, she mentioned that she would need a progress report relating to her admission and I also received a letter from her lawyers. The report has been prepared on the basis of observations in the mental health unit over the course of the admission to the (omitted) Clinic. Ms Barlow is aware that this will be presented to court and has provided voluntary and informed consent for same. The ideas and opinions in this report may not be comprehensive or final as her treatment is not complete as yet and as such, a repeat assessment is recommended towards the end of the admission. I do not have any collateral information other than sources apart from those mentioned below.
The report is based on information received from the following sources: interviews with Ms Barlow in the (omitted) Clinic on 23, 24 and 26 February and 2 March; a letter from Ms A addressed to the Family Court of Australia dated 22 February regarding Ms Barlow; observations by nursing staff as reported in her inpatient file during her stay at the (omitted) Clinic.
Clearly then, this is a treatment note report. It is not a report that is able to express any opinion as to Ms Barlow’s current circumstances or her current mental health. Indeed, the admitting psychiatrist says:
I have not seen her in the context of preparing this report.
The content must be dependent upon Ms Barlow’s self-report, upon nursing staff observation and a letter from her solicitors. As such, the report provides little to no assistance to the court today other than to know that the mother’s mental health is compromised and she remains an inpatient in a mental health facility nearly a month after first consulting a mental health facility.
On 2 March 2016, the father filed an Application in a Case. In that application, he seeks, pending further order:
·that he have sole parental responsibility for X;
·that X live with him;
·that the mother be restrained from any contact with X or from attending her school or any other of X’s extra‑curricular activities.
He filed an affidavit in support of that application. He also caused to be filed an affidavit by his brother, who is his employer; and an affidavit of his mother, Ms W, who is the paternal grandmother.
On 8 March 2016, Ms Teal, the maternal aunt, appeared. She was self‑represented. She filed a Response, an affidavit and a notice of risk.
In her Response, pending further order, Ms Teal seeks orders:
·that all previous parenting orders regarding the time spent between X and the applicant father and respondent mother be discharged;
·that the child live with the second respondent, that is Ms Teal;
·that the second respondent will facilitate face-to-face contact between the child and the father as agreed with the father and failing agreement, on each Saturday for no less than two hours at a time and place to be agreed between the second respondent and the father, provided that the second respondent remains present at all times during the period of contact;
·that the second respondent shall facilitate face-to-face contact between the child and the mother as agreed with the mother;
·that the second respondent shall facilitate telephone contact between the child and each of the mother and the father;
·that the second respondent is at liberty to terminate the telephone calls between the child and the mother or father at such times as she deems appropriate.
By way of final orders, Ms Teal has sought that leave be granted to her to amend such orders as are sought after the preparation of a family report.
On 8 March 2016, Ms Teal confirmed that if her sister was not in a position to resume the care of X at some point in the future, then Ms Teal confirmed she would be seeking a final order for X to live with her.

At the commencement of the interim hearing on 8 March 2015, Ms A, the manager of case work at the (omitted) office of the Department of Family and Community Services, was telephoned on my instructions from open Court. This was because the Department had not appeared, despite the request being made pursuant to section 91B; because the Department had, during the intervening period, pursuant to section 121, sought information from the Federal Circuit Court as to future Court events.
It is appropriate at this point to record on the record the contents of the Department’s letter that is exhibit A:
I’m writing on behalf of Department of Family and Community Services. It has come to the secretary’s attention that the above child is subject to proceedings in the Federal Circuit Court. Under the memorandum of understanding, I would like to provide information about current concerns for X held by the department. On 15 February 2016, Community Services received a risk of significant harm report in relation to X.
The report outlined serious concerns about the mother Ms Barlow’s mental health, issues reported including the mother presented in a state of panic about a blue-coloured liquid that she found on the floor of the garage. Mother spoke for two hours about aliens, God and redemption and her fears that she and X would be abducted by aliens. Mother was convinced that a spaceship had landed at their home last night because of this blue substance. The mother showed the caller a picture of the substance and the caller thought that it resembled a blue coolant which often leaks from cars. Mother is convinced that the liquid was left by a spaceship and that the aliens were there to abduct her or X. The mother also believes that the aliens left sand on the garage floor and that the aliens had written symbols in the sand.
The mother brought a bag of X’s pictures and artwork. She is claiming that around the edges of X’s class work, she has written a secret code which was written by X and the mother believes that the father is teaching X this secret language and it is all to do with the aliens.
X has trouble sleeping because she is scared that aliens are coming to abduct her. The caller has seen the mother deteriorate over the past two years and her behaviour this morning was disturbing. X is afraid of going to sleep and she is becoming very withdrawn and looks like she is not sleeping.
The television is on at home constantly and they believe that if it goes funny, they know the aliens are coming.
The mother is frequently not sending X to school and when she’s at school, because of X’s extreme anxiety that she is constantly being watched, she is seated in a special place in the classroom which is away from the door, but facing the door so that she can see if someone is coming to the door. X is scared that an alien is going to kidnap her from school. X feels like people are constantly watching her and wanting to take her.
X writes her S backwards. The mother believes that this is coming from Satan and that they are serpents.
Ms Barlow has concerns that X would be having a shower and she was mixing shampoos to make poison to kill both Ms Barlow and X.
X drew a princess in class with love hearts around it. When the mother saw this drawing, she became hysterical and was sweating and she asked why her daughter was drawing a monster, stating that it was from her head.
On 17 February 2016, Community Services case workers went out to the family home to assess the risk of significant harm to X. The mother would not open the door so the police were called. The police gained access to the home due to concern for X’s welfare and after speaking with Ms Barlow, the police assessed that the mother was mentally unwell and called the New South Wales ambulance for assistance. The police and ambulance agreed that X needed to be scheduled and taken to the hospital for further assessment. It was reported that Ms Barlow had advised police of the following information when they arrived at the home: her ex-partner breaks into her home and takes photos, scans them and places the slightly-altered images back in the home; Ms Barlow has concerns that X is drawing aliens; unknown persons are placing angel cards on her bedside drawers and worry dolls in her room. Case workers observed X to be extremely distressed when the police entered the home. She was screaming uncontrollably and appeared terrified.
On 18 February, Community Services were informed that the hospital did not admit Ms Barlow and she was released from hospital later that night. Community Services continued to hold concerns for X’s wellbeing. Community Services have a current safety plan in place for X to stay with her aunt for a week. Ms Barlow is only to have supervised contact during this week. Community Services are of the view that Ms Barlow requires a thorough psychological assessment. The secretary provides this information to the Court in the context of child protection and in accordance with the memorandum of understanding between the Federal Circuit Court and the New South Wales Department of Family and Community Services.
The letter (exhibit A) was signed under the hand of Ms A, manager, case work, (omitted), 22 February 2016.
Notwithstanding the request for and provision of information the Department has decided that it will not intervene in these proceedings, that it will transfer the file from its (omitted) office to a (omitted) region office and do nothing further and leave it to that northern region office.
It would appear – and I think it is an unavoidable perception – that the Department has made that decision because Ms Barlow is an employee of the (employer omitted) based at (omitted) office.
Given their actions on 17 February 2016 in removing X from risk – an action that was entirely appropriate and in accordance with the Department’s mandated jurisdiction – that the Department would now decline an invitation to intervene in these proceedings pursuant to s.91B is, in my view, woefully inadequate given they have not it would seem sought any order from any court.
After placing X with the aunt, departmental officers, having regard to information provided by Ms Teal, facilitated some time between the father and X without prior consultation with Ms Teal and without any court order.
The department has not obtained an order from any court as a result of their intervention and removal of X. The safety plan that they created has elapsed.
This court has jurisdiction.
The Department, in light of the above events, in light of the material that they have provided to the court, in light of the actions that they have taken should have in my view accepted the application to intervene.
Why the Department placed X with her aunt and not her father or her 20 year old brother, Mr J, with whom she had also been living and always living is perplexing. I cannot discern whether the Department has considered the longstanding parenting orders, or the relationships between X and Mr J. It is not apparent to me that they have.
If the Department had a reason for placing X with her aunt and wanted to further advance that decision, they should have intervened in these proceedings. Not intervening causes me to conclude that the placement of X with her aunt was simply expedient.
Ms Teal has standing under s.65C but only just and only by virtue of the Department’s actions.
She outlines in her affidavit the limited relationship that she has with X. In her affidavit sworn 8 March 2016, paragraph 13, Ms Teal says:
Prior to X coming to live with me, I saw her about once per week.
In the same affidavit in paragraph 14, she says:
My children and I also spent time with X and Ms Barlow together with my twin brother, Mr M, Mr M, Mr M’s family and my parents at family gatherings.
Paragraph 15:
Since coming to live at my home, X is also spending time with my parents, her grandparents, at least once a week, as I often see my parents. My parents reside in (omitted).
Paragraph 16:
I have seen X and A play together nicely as they have since A was a toddler.
A is one of Ms Teal’s children.
Ms Teal is employed full time in (occupation omitted). She says her work hours are flexible and she can deliver her children and X to school each day and collect them from after school or after school care on each day.
Her home is, she says, 11 kilometres from X’s school at (omitted) Public School.
The principal of that school who is, I am satisfied, the person who made the report to the Department of Family and Community Services and caused them to undertake the intervention that they did, has given to the Independent Children’s Lawyer a letter. That letter is exhibit K. The letter is dated 8 March 2016.
Overview of our phone conversation re: the wellbeing of X. While X has been in the care of her Ms Teal, she has been a very settled and happy child. X appears very vibrant and has shown resilience throughout her separation from her mum with the support of her Ms Teal and the student welfare systems that have been put in place at school to support X. I would have concerns if there were major changes to X’s living conditions, as she has been through a number of changes of late, and I do not feel it would be in X’s best interests for X to have another change in such a short period of time. Kind regards, Ms J, Principal, (omitted) Public School.
The effect of change referred to by the principal is but one of the factors that I am to have regard to pursuant to s.60CC.
There is an unacceptable risk, given the contents of exhibit A, for X to live with her mother. X was, in recent time subject to her mother’s deteriorating mental health to the extent that X had I conclude become hypervigilant, extremely anxious and fearful.
There is little to no doubt in my view that X’s behaviours were directly correlated or influenced or caused by her mother’s deteriorating mental health.
The Department correctly identified that X was at risk of harm if she remained in her mother’s care.
The mother’s mental health is too compromised to enable X to live with her mother. X’s mother remains an inpatient at a mental health facility and unavailable to care for X.
For the reasons the existing parenting orders must be suspended.
There have been orders in place for a long period of time now, since 2009 whereby X is to spend time with her father. The duration of the periods has varied over time.
The actual time that they have spent together has been disrupted from time to time I am satisfied by the actions of the mother and by court order.
X has, by virtue of the time she has spent with her father a familiar relationship with him.
The Department has indeed over the objections of Ms Teal, facilitated time between X and her father.
X and her father have spent long periods of time together, including overnight periods of time.
I am satisfied these facts would mean that X’s relationship with her father is likely for X to be an important and familiar relationship.
It seems that on 17 February 2016, X said that she wished to go with her aunt. In the circumstances of what happened that day, with police and paramedics forcing access into X’s home of the mother’s mental health having deteriorated (although it would seem that the mental health facility at (omitted) thought that she did not require admission) that X would have, I am satisfied at that point in time, jumped at any opportunity to have herself removed from the circumstances in which she found herself.
In those circumstances, X’s expressed view to live with her aunt is given little weight other than as an attempt and a desire to escape from the intolerable situation that she found herself in at that time. I do not take it to be a view that X has at this point in time relevant to her long-term ongoing care.
The father has in the past been investigated by JIRT, following a complaint by the mother that he had permitted X to view age‑inappropriate sexual content on a video. JIRT took no further action other than to interview X at that time.
Further parenting orders were thereafter made facilitating time between X and her father. X is not at this time at any risk in her father’s care.
Ms Barlow has in the past not always facilitated time between X and her father.
The father has when Ms Barlow has permitted had time with X pursuant to the orders.
The mother’s compromised mental health means she is currently unable to make parenting decisions.
To live with her father would be a significant change for X. She has not since her birth lived with him. She has by consent spent increasing periods of time with him. She has experienced spending multiple consecutive overnight periods of time with him.
I am satisfied that the father is currently available to care for her and has significant family support. He works full time for his brother who is on affidavit as saying that he will facilitate some flexibility for them.
How X will adjust to living with her father is not able to be determined by me at this point in time. The orders for family therapy will provide some assistance.
I am satisfied, given the relationship that exists between X and her father, that living with her father is a change to which X is likely to adapt.
It is clear that having removed the mother from X’s immediate parenting that X has now become much more settled. The principal says that she has become very settled and happy, vibrant and has shown resilience.
There is no evidence that causes me to conclude that the father is not a capable parent.
The investigation by JIRT has been finalised.
The parties entered into orders to protect X from exposure to age‑inappropriate material.
The initial family report recognised that it was important for X to have a relationship with her father. The parties put in place orders that quickly established the time recommended in the family report.
For the best part of four years until the contravention proceedings, the mother and father seem to have put those arrangements into place. The hiccup seems to have been the report as to the material viewed on video by X when being cared for by the father.
X has experienced only a very brief period of time little more than a month of living with her aunt. Her relationship with Ms Teal is unlikely to be as strong or as important as is her relationship with her father.
Any orders that I make today will be temporary.
There is no criticism of Ms Teal. She has “dropped everything” at the insistence of the Department of Family and Community Services to intervene in the life of her niece and to assist her niece and to care for her niece at a time of extreme distress for her niece. That she did so willingly is a credit to her. She has, thereafter, continued to provide parental supervision and care for X at some difficulties to herself and her family and her work commitments. That, too, is a credit to her.
I am satisfied that having regard to all of the above reasons, all prior parenting orders should be suspended.
Both the father and the aunt recognise this needs to happen and request that it do so.
The mother is not mentally fit at this point in time and unable to care for or parent X, nor able to make parental decisions.
The benefit to X in commencing to live with her father is on the evidence in this case and in consideration of the factors that I have referred to above pursuant to s.60CC, overwhelmingly in her benefit and for that reason I so order. Not all the s.60CC factors are relevant to Ms Teal who is not X’s parent. Any factor relating to parenting and on the evidence applicable to Ms Teal has been considered pursuant to s.60CC(3)(m).
There is no practical difficulty in making the orders other than X remaining enrolled in (omitted) Public School. Staying at that school in the interim is likely to be comforting for X.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge Dunkley

Date: 31 March 2016

[2016] FCCA 651

14 March 2016

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Appeal

Costs

Jurisdiction

Procedural Fairness

Remedies

Standing