Welk and Porter and Anor

[2014] FCCA 3216

FEDERAL CIRCUIT COURT OF AUSTRALIA

WELK & PORTER & ANOR [2014] FCCA 3216

Catchwords:
FAMILY LAW – Parenting – undefended hearing – risk of harm to child considered – grandparent seeking final parenting orders.

Legislation:

Family Law Act 1975, ss.60B, 60CC, 65C(ba)

Applicant: MS WELK

First Respondent: MR PORTER

Second Respondent: MS MIDDELSTADT

File Number: PAC 5482 of 2012

Judgment of: Judge Dunkley

Hearing date: 16 April 2014

Date of Last Submission: 16 April 2014

Delivered at: Parramatta

Delivered on: 16 April 2014

REPRESENTATION

No appearance for the Applicant:

No appearance for the 1^st Respondent:

Counsel for the 2^nd Respondent: Mr G. Kenny

Solicitors for the 2^nd Respondent: Streeter Law

Solicitors for the Independent Children's Lawyer: Ms C. Soliman of Legal Aid NSW

ORDERS

1. All prior parenting orders with respect to the child X born (omitted) 2009 are discharged.

2. The Second Respondent, Ms Middelstadt shall have sole parental responsibility for the child X born (omitted) 2009.

3. The child shall live with the Second Respondent.

4. The child shall spend no time with the First Respondent, Mr Porter.

5. The child shall spend time with the Applicant Ms Welk by arrangement and agreement between Ms Welk and Ms Middelstadt.

6. Remove all outstanding applications and responses from the list of case awaiting finalisation.

7. Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5482 of 2012

MS WELK

Applicant

And

MR PORTER

First Respondent

MS MIDDELSTADT

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

Background

1. These are parenting proceedings relating to a child X born (omitted) 2009.

2. This case first came before this court in December 2012 when a registrar granted short service of an application for parenting.

3. On 12 December 2012 the case came into my docket.  A number of orders were then made including the appointment of an independent children’s lawyer and the listing of the case for an interim hearing on 1 February 2013.

4. The participants in the proceedings were then the mother, Ms Welk, the father, Mr Porter, and the maternal grandmother, Ms Middelstadt.

Determination

1. The chronology set out in the case outline drafted for Ms Middelstadt by her counsel is correct and adopted as such

2. X has had a disrupted childhood.  She has been cared for at various times by her mother, her father and the maternal grandmother.

3. There have been parentings orders made relevant to X in the Melbourne Magistrates’ Court, in courts in Queensland, in Children’s Courts in Melbourne and in this court.

4. In the course of this case a number of orders have been made including the ordering of a family report.  That report has been prepared and is an exhibit.  The report was written by a consultant child and adolescent psychiatrist Dr J.

5. The child has spent time with the father and the mother pursuant to orders of this court.  Since June 2013, X by order of this court has predominantly lived with her maternal grandmother.

6. On occasions there was need for recovery orders to be applied for when the father did not comply with parenting orders.

7. Throughout the course of the proceedings, Ms Welk has struggled with her mental health and has now for a long period of time been an involuntary patient at a mental health facility.

8. In June 2013 in addition to making orders after a contested interim hearing, the case was listed for final hearing on 28, 29, 30 and 31 January 2014.

9. On the first day of that hearing there was an application made by counsel for the father to adjourn the proceedings on the basis that the circumstances surrounding X were then somewhat in flux.

10. The father at that point had the potential, as expressed by his counsel, of perhaps moving from Sydney to Queensland where he would live.

11. The mother at that stage was a patient involuntarily in a mental health unit.

12. The maternal grandmother was in the process of moving from the home that she lived in (omitted) to the (omitted) area.

13. On granting the adjournment application, the case was then listed for further directions on 14 March 2014.

14. On 14 March 2014 the mother did not appear.  She was still a patient involuntarily in a mental health facility.  The father did not appear and we now know, although we did not then know, that he was at that time on remand arrest and bail refused.

15. The only appearances on 14 March 2014 was by the Independent Children's Lawyer and the maternal grandmother.

16. It is now apparent from exhibit A, that the father has been convicted of indecent assault on a child under the age of 16 years.  In the course of those proceedings the Downing Centre Local Court at some point issued a warrant for Mr Porter’s arrest.  He was eventually arrested.  At some point he was granted conditional bail.  Conditions of his bail were that he not approach the victim or members of her family, that he reside at (omitted), that he not catch any form of public transport, and he not approach or interact with any child under the age of 16 years.

17. The offence for which he has been convicted is a particularly egregious offence in that he touched a child of primary school age who was travelling from her school by public transport by grappling with her genital area.  There is CCTV footage of him engaged in that act.  There is CCTV footage of him being tracked on leaving that bus.

18. The above is enough to satisfy me that there would be an unacceptable risk of harm to X if the father were to have any contact with her at all.

19. That is notwithstanding the fact that in paragraph 401 of the family report is a statement from Dr J to the effect that there did not appear to be any risk of physical harm to X from either parent or her grandmother.

20. The events as outlined for which the father has now been convicted is so egregious that I am satisfied and find that he presents as a risk to X and the statement of Dr J is not reflective of the current evidence.

21. Similarly, but for reasons entirely beyond her control, because of difficulties with her mental health, the mother too if she were to have time with the child other than supervised or monitored by a person at this point would expose X to an unacceptable risk of harm.

22. This finding is beyond Ms Welk’s current ability to control by virtue of her mental health.

23. Since June 2013 X has been capably cared for and parented by her grandmother, and without her grandmother would now as a result of the circumstances that her parents find themselves in, have become a child subject to state law if her grandmother had not stepped in to take care of her and parent her.

24. Notwithstanding suggestions made by Mr Porter at previous proceedings in this court, I am satisfied and find Ms Middelstadt presents no risk of harm to X.  Indeed, Ms Middelstadt presently is the only person able to nurture and develop X.  Ms Middelstadt has demonstrated the capacities necessary as a grandparent to love and nurture X.

25. In making orders today those orders must have as their paramount consideration the best interests of X.

26. The orders are to be informed by the objects in s.60B. There must be applied and considered a number of factors set out in s.60CC(2), (2A) and (3). The orders made must be reasonably practicable.

27. Given the findings that I have made in respect of risk, s.60CC(2A) requires me to promote the need to protect X over and above the benefit that attaches to her having a meaningful relationship with either or both of her parents.

28. The only way to protect X is by making an order that she would live with the second respondent who would have sole parental responsibility for her.

29. Given the findings made with respect to the applicant mother and the respondent father, there is no benefit that would attach at this point in time to X having a relationship with either of her parents.

30. That may change with respect to Ms Welk depending upon the treatment that she receives for issues with respect to her mental health.

31. Ms Middelstadt is fostering as best as she can in the current circumstances the continuation of X’s relationship with her mother.  Visits as approved by doctors at the mother’s mental health facility occur between X and the mother.

32. It was clear from the family report the maternal grandmother is a person of significance and has a significant and important relationship with X. She has standing under s.65C(ba).

33. The relationship between X and her grandmother is a relationship from which X derives much joy and comfort.

34. The above relationship is one that is demonstrative of Ms Middelstadt’s capacity to fill a role as a parent.

35. It was demonstrative of her ability to meet the emotional and other needs of X.

36. Ms Middelstadt has made arrangements for X’s enrolment at a school in (omitted).  She has housing that provides all that is necessary for X in (omitted).

37. Not all of the factors under s.60CC(3) are relevant in the terms of their expressions to grandparents, however, the Full Court in a number of decisions has made clear that the court can consider all of those factors if it is to make a parenting order relevant to grandparents by virtue of the effect of s.60CC(3)(m). I have done so.

38. The family report recommended in paragraph 404:

    At this stage, it may be appropriate not to make final orders considering the many imponderables and instabilities in the parents’ lives.  Interim orders may need to be made facilitating X’s continued primary care from her grandmother until such time that it is evident that the facts – what the facts are about Mr Porter’s future plans for accommodation and employment and whether or not he will be living with Ms K.  Ms Welk’s mental health remains a significant factor and her move to (omitted) makes it less likely that she will be able to have a substantial role with X. 

    If Mr Porter does move to Queensland, this will complicate the recommendations and orders.  Orders that enable X’s mother to ….. her relationship in the presence of the grandmother may minimise the risk to her – minimise the risk of further legal proceedings between the parties.  Orders that enable Mr Porter to maintain a close relationship with X once his life situation is clearer and more stable should also reduce the risk of further legal proceedings with regard to X’s care from her father.

39. Events since that report have overtaken those recommendations for the reasons that I have already outlined earlier in this judgment.

40. There is no benefit that would be attained by X being separated from the care of her grandmother.

41. There is now no longer any benefit in the making of interim orders.  Final orders are necessary to bring finality to these proceedings to give certainty to X and to ensure that her future needs are met.  A prolonging of litigation would not be, in the best interests of this child, given the events that have transpired over the last nearly 12 months. 

42. There will be no change for X in that she will continue to live with her grandmother as she has since the orders were made in June 2013.

43. She will not be able to spend any time with her father, but in the circumstances of the offences of which he has been convicted, that is a situation that will be a minimising factor in risk for X, and beneficial to her.

44. The grandmother has demonstrated a proper and important attitude to the responsibilities of parenthood and has sat stoically silently in the face of outrageous claims by Mr Porter, which were made without him being able to bring one scintilla of evidence to bear in support of those outrageous claims.

45. Dr J is indeed correct when he says that calls into question Mr Porter’s attitudes.  The grandmother has always displayed a proper attitude to the responsibilities of caring for X.

46. I am satisfied for those reasons that the only order that could be in X’s best interests is an order for the grandmother to have sole parental responsibility and for X to live with her and that those orders be final orders.

47. The mother’s mental health does not enable her to contribute in any meaningful way to discussion about long-term care and development of X.

48. Mr Porter, by reason of his actions, is not an appropriate person to have any input into the raising of X.

49. For all these reasons Ms Middelstadt is to have sole parental responsibility for X.

50. There is no adult presently available other than her who would be able to do anywhere near as capable a job at raising X as she does.

51. I am satisfied, then, for those reasons that it is in X’s best interests for her to live with her grandmother who shall have sole parental responsibility for her.  There will be an order prohibiting contact between X and her father.  There will be orders that enable Ms Middelstadt to make arrangements for X to spend such time as would, in Ms Middelstadt’s view, be in X’s best interest with her mother.

52. Those orders are orders that at this time on the current evidence are least likely at this point in time to lead to further litigation.

53. They are the only orders at this time that are reasonably practical and they are orders that mitigate risk of harm.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Dunkley

Date:  8 August 2017