FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Vega & Drake [2023] FedCFamC2F 400
File number(s): NCC 1290 of 2020 Judgment of: JUDGE KEARNEY Date of judgment: 6 April 2023 Catchwords: FAMILY LAW – Parenting – where three children aged 6, 5 and 3 have been exposed to risk of harm (abuse / serious neglect / family violence) by their parents – where both parents have impaired parenting capacity – appropriate for paternal grandparents to have equal shared parental responsibility – as both mother and father pose unacceptable risk of harm to the children, children to live with paternal grandmother - injunctive relief and prohibitory orders to ameliorate risk when spending time – change of surname for youngest child - maintenance of meaningful relationships – protection of children from harm – children’s best interests Legislation: Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth)
Cases cited: Blinko & Blinko [2015] FamCAFC 146
Dasreef Pty Limited v Hawchar [2011] HCA 21
Eastley & Eastley [2022] FedCFamC1A 101
Godfrey & Saunders [2007] FamCA 102
Isles & Nelissen [2022] FedCFamC1A 97
Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554
Mazorski & Albright [2007] FamCA 520
Medlon & Medlon (No. 6 (Indemnity Costs) [2015] FamCAFC 157
Napier & Hepburn [2006] FamCA 1316
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] FamCA 158
Penfold and Penfold (1980) 144 CLR 311
Russell & Close [1993] FamCA 62
Division: Division 2 Family Law Number of paragraphs: 114 Date of hearing: 20-22 February 2023 and 17 March 2023 Place: Newcastle Counsel for the Applicant: Mr Weightman Solicitor for the Applicant: Powe & White Family Lawyers Counsel for the First Respondent: Ms McMullen Solicitor for the First Respondent: Legal Aid NSW Solicitor for the Second Respondents: Appearing in person Solicitor for the Third Respondent: Appearing in person Counsel for the Independent Children's Lawyer: Mr Turnbull Solicitor for the Independent Children's Lawyer: NLS Law ORDERS
NCC 1290 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR VEGA
Applicant
AND:
MS DRAKE
First Respondent
MS ALLISON & MR B VEGA
Second Respondent
MS DONALDSON
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE KEARNEY
DATE OF ORDER:
6 April 2023
THE COURT ORDERS THAT:
1.All existing parenting orders in these proceedings be discharged.
2.The second respondents, MS ALLISON (‘the paternal grandmother’) and MR B VEGA (‘the paternal grandfather’) shall have equal shared parental responsibility for the children, X born in 2016, Y born in 2018 and Z born in 2019 and collectively referred to as ‘the children’.
3.Within seven (7) days of making a decision about the children’s health or education, the paternal grandfather or the paternal grandmother shall advise the applicant, MR VEGA (‘the father’) and the respondent, MS DRAKE (‘the mother’) of such decision/s.
4.The children shall live with the paternal grandmother.
5.In the event…
Continue reading Vega & Drake
Sign in free to access the full text
- AGLC
- Vega & Drake [2023] FedCFamC2F 400
- Case
- [2023] FedCFamC2F 400
- Decision Date
CaseChat Overview and Summary
The legal issues before the court centred around determining the most suitable living arrangements for the children, given the parents' unfitness to care for them. The court had to balance the children's need for safety and stability with their right to maintain meaningful relationships with both parents. Additionally, the court considered the grandparents' capacity to provide a stable and nurturing environment, ultimately finding them suitable custodians. The court also had to decide on the appropriate level of parental involvement for each party, the necessity of supervised visits, and the conditions under which contact should occur. Finally, the court addressed the need for the children to maintain connections with both parents while ensuring their safety and well-being.
Orders
Orders of the court
1. All existing parenting orders in these proceedings be discharged.
2. The second respondents, MS ALLISON (‘the paternal grandmother’) and MR B VEGA (‘the paternal grandfather’) shall have equal shared parental responsibility for the children, X born in 2016, Y born in 2018 and Z born in 2019 and collectively referred to as ‘the children’.
3. Within seven (7) days of making a decision about the children’s health or education, the paternal grandfather or the paternal grandmother shall advise the applicant, MR VEGA (‘the father’) and the respondent, MS DRAKE (‘the mother’) of such decision/s.
4. The children shall live with the paternal grandmother.
5. In the event that the father moves out of the paternal grandmother’s home, the paternal grandmother is restrained and an injunction shall issue prohibiting her from causing or allowing the children to live with the father.
6. The father shall spend time with the specified child or children:
(a) Until 6 April 2024:
(i) At times agreed in writing between the paternal grandmother and the father PROVIDED such time occurs in her presence, and unless otherwise specified by these Orders; and
(ii) On one occasion during the last week of each month for a period of two (2) hours supervised by C Family Services (‘the supervisor’) on a day and time as arranged by the supervisor which is mutually convenient to the paternal grandmother and the father; and
(iii) At times when the children may be spending time with the paternal grandfather at his residence THEN as agreed in writing between the paternal grandfather and the father PROVIDED such time occurs in his presence of the paternal grandfather, and otherwise as specified by these Orders; and
(iv) At times agreed in writing for two (2) hours each week at a public place between the paternal grandmother and the father and only with X and Y; and
(v) At times agreed in writing for two (2) hours each week at a public place between the paternal grandmother and the father and only with Z.
(b) From 7 April 2024, at times as agreed between the paternal grandmother and the father PROVIDED THAT
(i) such time does not interfere with the time or communication the specified child or children would spend or have with the mother as provided for in these Orders; and
(ii) the children shall not spend overnight time with the father away from either the presence of the paternal grandmother or the paternal grandfather UNTIL the father has attended the C Family Services D Program for a period of at least 12 months.
7. The children shall spend time with the mother:
(a) During school terms as exercised by the children’s school (as may be applicable):
(i) from the conclusion of school (or 3:00pm) on Friday until the commencement of school (or 8:30am) on Monday and on each alternate weekend afterwards, commencing on Friday 28 April 2023; and
(ii) from the conclusion of school (or 3:00pm) on Wednesday until the commencement of school (or 8:30am) on Thursday and on each alternate week afterwards, commencing on Wednesday 3 May 2023.
(b) During school holidays as exercised by the children’s school (as may be applicable):
(i) For the Autumn 2023 school holidays from 12.00noon Easter Sunday 9 April 2023 until 12.00noon Sunday 16 April 2023;
(ii) For the Autumn, Winter and Spring school holidays commencing with the Winter 2023 school holidays - from 9:00am on the first Sunday until 12:00noon on the middle Sunday; and
(iii) For the Summer school holidays - “week about” for seven consecutive nights (‘a week’) :
A. In 2023 and each alternate year afterwards from 9:00am on the first Sunday and concluding at 12:00noon on the following Sunday and each alternate week afterwards;
B. In 2024 and alternate year afterwards from 9:00am on the second Sunday and concluding at 12:00noon on the following Sunday and each alternate week afterwards.
8. To ascertain the resumption of school term time spent by the children with the mother following any of the school holiday periods, the sequence of alternating weekends shall be maintained (although not taken during school holidays) and used in calculating time in these orders.
9. Notwithstanding any other order and unless otherwise agreed in writing between the paternal grandmother and the father and the mother (as may be applicable), the children shall spend time with the mother and the father (as may be specified) on the following special occasions:-
(a) Mother’s Day weekend – with the mother from the conclusion of school (or 3:00pm) Friday until the commencement of school (or 8:30am) Monday;
(b) Father’s Day weekend – with the father from the conclusion of school (or 3:00pm) Friday until the commencement of school (or 8:30am) Monday;
(c) Christmas period –
(i) in 2023 with the father from 2:00pm Christmas Eve until 2:00pm Christmas Day and with the mother from 2.00pm Christmas Day to 2.00pm Boxing Day; and
(ii) in 2024 with the mother from 2:00pm Christmas Eve until 2:00pm Christmas Day and with the father from 2:00pm Christmas Day to 2:00pm Boxing Day;
(d) Children’s birthdays –
(i) with the father and the paternal grandmother from 3:00pm to 6:00pm should the children be spending time with the mother on those days; and
(ii) with the mother from 3:00pm to 6:00pm should the children be living with the paternal grandmother on those days.
10. Changeovers for the children to spend time with the father shall be as follows:
(a) When time is to be supervised by the supervisor THEN as directed by the supervisor; and
(b) Otherwise, at a location nominated by the paternal grandmother.
11. Changeovers for the children to spend time with the mother shall be as follows:
(a) On a school day - by the mother or her nominee collecting or returning Y and X to school and Z to the early childhood education centre (‘child care’) nominated in writing by the paternal grandmother; and
(b) On any other day – by the mother or her nominee collecting or returning the children to the paternal grandmother or her nominee at the paternal grandmother’s residence or another location (within 10 kilometres of the paternal grandmother’s residence) nominated in writing by the paternal grandmother PROVIDED THAT if a nominee or alternate location is nominated, the paternal grandmother shall give the mother at least 48 hours’ written notice of this information via text message to the mother’s mobile telephone.
12. Unless otherwise agreed in writing between the mother and the paternal grandmother, on days when the children have not spent time with her, the mother shall communicate with the children by telephone or FaceTime each Tuesday and Thursday between 6:00pm and 6:30pm, and the paternal grandmother shall ensure that the children are available to receive the telephone or FaceTime call.
13. The father is restrained and an injunction shall issue prohibiting the father from being present or within earshot of the children during any communication they have with the mother pursuant to Order 12.
14. The father shall have communication with the children as agreed in writing between the paternal grandmother and the father provided such communication does not interfere with the time or communication the children spend or have with the mother.
15. By 4:00pm Tuesday 11 April 2023, the paternal grandmother, the paternal grandfather, the father and the mother shall notify each other of their residential address, contact email address and contact telephone number/s and will advise each other of any changes to that information within 48 hours of such change occurring.
16. Until Z commences primary school, Z shall be enrolled and attend child care for at least four (4) days a fortnight.
17. X and Y shall continue their enrolment and attendance at E School, City F, New South Wales until they each respectively, complete Year 6.
18. In the exercise of their equal shared parental responsibility, the paternal grandmother and the paternal grandfather shall be at liberty to enrol the children into any after-hours school program that is attached or geographically close to the child/children’s school/s and/or school holiday programs PROVIDED THAT such activities do not interfere with the time the children spend with the mother.
19. The paternal grandmother and the paternal grandfather shall do all acts and things to ensure that –
(a) By 20 April 2023, each child attends upon a general practitioner to obtain a referral to a paediatrician;
(b) Within 14 days of obtaining such referral, the paternal grandmother and the paternal grandfather shall contact a paediatrician/s to book the next available appointment/s; and
(c) the children attend all paediatric appointments as deemed necessary by the treating by the paediatrician/s and follow all treatment plans and recommendations made by the paediatrician/s.
20. The paternal grandmother and the paternal grandfather shall do all acts and things to comply with any treatment plans (including attendance at appointments) and/or recommendations made by any of the children’s medical or allied health professionals including but not limited to:
(a) speech therapy for X and Y;
(b) hearing assessments for the children;
(c) occupational therapy for the children;
(d) dental treatment for the children.
21. The paternal grandmother and the paternal grandfather shall do all acts and things to arrange an assessment for each of the children under the National Disability Insurance Scheme (NDIS) and otherwise co-operate and comply with any NDIS plan that may be created for the children or any one of them.
22. To facilitate the timely implementation of Orders 19 to 21, the mother shall forthwith provide a copy of the children’s Medicare card(s) to the paternal grandmother and the paternal grandmother.
23. By 13 April 2023, the mother shall do all things and acts to notify Service NSW, Services Australia and Centrelink that the children are not living with her and are living with the paternal grandmother pursuant to an order of this Court.
24. The paternal grandmother, the paternal grandfather, the mother and the father shall as soon as possible notify each other by SMS message upon any of the children:
(a) becoming seriously ill; or
(b) being involved in an accident or in an emergency that requires hospitalisations (including presentations at an emergency department); or
(c) suffering a serious injury requiring urgent medical attention.
25. The paternal grandmother, the paternal grandfather, the mother and the father are authorised (and a copy of these orders shall be sufficient authority) for each of them:
(a) To receive such notices, newsletters, invitations, photographs, reports and other documents or information normally provided to parents from any school or early childhood education centre which the children may attend from time to time;
(b) To attend all functions to which parents are normally invited by any school or early childhood education centre which the children may attend from time to time, including but not limited to concerts, awards ceremonies, assemblies, sports days and parent-teacher evenings;
(c) To receive such medical reports, test results, medical notes and other similar documents normally provided to parents from any medical practitioner or allied health professional which the children may attend from time to time;
(d) To receive a copy of any NDIS plan that the children may be subject to.
26. The paternal grandmother, the paternal grandfather, the mother and the father shall keep each other informed of any medications prescribed for the children by a registered medical practitioner or other health professional from time to time and at the time of any changeover, provide to the receiving parent the medication and appropriate instructions as to dosage and administration.
27. At the commencement of each school term, the paternal grandmother shall notify the mother of any after-school activity that the children are enrolled in.
28. Within seven (7) days of enrolment, the paternal grandmother shall notify the mother of any high school that the children shall be attending.
29. Pursuant to s 68B of the Family Law Act 1975 (Cth), the father is restrained and an injunction shall issue prohibiting him from:
(a) bringing the children into contact with the mother whilst he is spending time with them;
(b) bringing the children into contact with any partner or girlfriend he may have for a period of 12 months;
(c) discussing with the children these proceedings or any allegations made within these proceedings;
(d) denigrating the mother, or Mr G or the mother’s family to or in the presence or hearing of the children and will remove the children from the presence of any person who is doing so; and
(e) posting content or information (including photographs) about the mother or the children on his social media accounts or providing or permitting any person from doing so.
30. Pursuant to s 68B of the Family Law Act 1975 (Cth), the mother is restrained and an injunction shall issue prohibiting her from:
(a) bringing the children into contact with the father whilst she is spending time with them;
(b) discussing with the children these proceedings or any allegations made within these proceedings;
(c) denigrating the father, or the father’s family to or in the presence or hearing of the children and will remove the children from the presence of any person who is doing so; and
(d) posting content or information (including photographs) about the father or the children on her social media accounts or providing or permitting any person from doing so.
31. The mother is required and an injunction shall issue requiring her to:
(a) cause each of the children to attend school and child care on the days that they are required to attend.
(b) cause each of the children to attend any after-school activities that may take place during the time that they otherwise spend with her.
32. Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of the children, the mother is restrained and an injunction shall issue prohibiting her from allowing the children, or any of them, to be left in the sole care of Mr G.
33. By 20 April 2023, the father shall do all acts and things to apply for entry into the C Family Services D Program and shall engage in such program (at his sole cost) for at least 12 months for a minimum of one attendance each month, and within seven (7) days of completion of each course, the father shall provide a certificate of completion to the paternal grandmother and the paternal grandfather.
34. By 6 April 2025, the mother shall complete a H Program and J Program and within seven (7) days of completion of each course, the mother shall provide a certificate of completion to the paternal grandmother and the paternal grandfather.
35. The paternal grandmother is authorised to apply to the Registrar of Births, Deaths and Marriages for the State of New South Wales for the child registered as Z born in 2019 to now be registered as Z born in 2019 and, for the purposes of this order:
(a) Pursuant to s 28(5) of the Births, Deaths and Marriages Act 1995 (NSW), it is requested that the Registrar register the child’s name in the form specified herein on the basis that the Court approves the proposed change of name;
(b) The paternal grandmother is permitted to provide a sealed copy of these orders to the Registrar of Births, Deaths and Marriages for the State of New South Wales;
(c) The father is solely responsible for the costs of the application for change of the child’s name; and
(d) The paternal grandmother shall do all acts and things necessary to cause Mr Vega to be registered with the Registrar of Births, Deaths and Marriages for the State of New South Wales as the father of Z born in 2019.
36. The paternal grandmother and the paternal grandfather are restrained and an injunction shall issue prohibiting each of them from denigrating the mother, Mr G and the mother’s family to or in the presence or hearing of the children and will remove the children from any person who is doing so.
37. By 13 April 2024, the Independent Children’s Lawyer is to meet with the children to explain the effect of these Orders to them.
38. By 6 April 2024, the father is to make a contribution towards the costs of the Independent Children’s Lawyer fixed in the sum of $4,970.05.
39. By 6 April 2024, the paternal grandfather is to make a contribution towards the costs of the Independent Children’s Lawyer fixed in the sum of $748.79;
40. By 6 April 2024, the paternal grandmother is to make a contribution towards the costs of the Independent Children’s Lawyer fixed in the sum of $748.79;
41. By 6 April 2024, the maternal grandmother is to make a contribution towards the costs of the Independent Children’s Lawyer fixed in the sum of $748.79;
42. All outstanding applications are dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.