Worthington and Worthington and Anor

[2017] FCCA 668

FEDERAL CIRCUIT COURT OF AUSTRALIA

WORTHINGTON & WORTHINGTON & ANOR [2017] FCCA 668

Catchwords:
FAMILY LAW – Parenting – undefended hearing.

Legislation:

Family Law Act 1975, s.60CC(2)(b)

Federal Circuit Court Rules 2001, r.16.05

Applicant: MS WORTHINGTON

First Respondent: MS B WORTHINGTON

Second Respondent: MR GORDON

File Number: MLC 8838 of 2016

Judgment of: Judge Harland

Hearing date: 16 March 2017

Date of Last Submission: 16 March 2017

Delivered at: Melbourne

Delivered on: 16 March 2017

REPRESENTATION

Counsel for the Applicant: Ms Webb

Solicitors for the Applicant: Danielle Webb Lawyer

The First Respondent: No appearance

The Second Respondent: No appearance

Counsel for the Independent Children's Lawyer: Ms Altavilla

Solicitors for the Independent Children's Lawyer: Altavilla Vessali

ORDERS

1. The Grandmother, MS WORTHINGTON has sole parental responsibility for the child X born (omitted) 2010 (“the child”).

2. Neither the mother nor the father spend time with the child.

3. The Independent Children's Lawyer for the child be discharged.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judge Harland delivered this day will for all publication and reporting purposes be referred to as Worthington & Worthington & Anor.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8838 of 2016

MS WORTHINGTON

Applicant

And

MS B WORTHINGTON

First Respondent

MR GORDON

Second Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application with respect to the parenting arrangements for X born (omitted) 2010 (“X”) who is five and a half years old.  He lives with the maternal grandmother who is the applicant in these proceedings, and he has an older half-brother, A, born (omitted) 2008 who is the mother’s oldest child.  The mother is the maternal grandmother’s daughter and the second respondent is X’s father.  The grandmother had to commence these proceedings urgently on 15 September 2016 after the father overheld X after spending time with him on Father’s Day, and it was necessary to issue a recovery order.  The grandmother’s evidence, which is supported by Exhibit A tendered by the Independent Children's Lawyer today, is a letter from the children and the grandmother’s counsellor, dated 6 May 2017.  Both children live with the maternal grandmother.  Currently, neither parent is spending time with the children.  The grandmother has filed three affidavits in these proceedings. She says that the parents were in a violent relationship, that the mother has an ice addiction and also serious mental health issues, and that the father has an alcohol addiction and mental health issues.

3. The Department of Health and Human Services (“the Department”) responded to the grandmother’s Notice of Risk, indicating that there had been six previous reports to the Department between 2012 and 2016. The grandmother also gives evidence about the Department’s involvement.  The Department closed its case in June 2016, prior to that they had been giving some assistance with respect to the father being reintroduced to the children. The father had spent some limited daytime visits prior to withholding X and separating the siblings.  The grandmother’s evidence is that X was traumatised by being separated from her and his brother and that since then X has had behavioural and emotional problems. X has been blaming the grandmother for not getting him and blaming his older brother A as well.  Both boys are receiving counselling and it is clear from the report from the counsellor that the boys have been traumatised not just by the father’s actions but also by the mother’s.  The mother had been spending some limited supervised time supervised by the grandmother, but the grandmother’s latest affidavit says that there was an incident on 15 February 2017 when the daughter assaulted her at her home in front of the children. 

4. The grandmother feels that after that incident, she is not in a position to supervise the mother’s time any longer.  She says that her daughter was blaming her for not giving her enough support and that the grandmother explained to her that she needs to focus on the children.

5. The children are young and vulnerable and rely on the maternal grandmother being able to provide them with a safe, loving environment.  Neither parent has filed any material in this matter and neither parent has attended Court today.  The grandmother seeks orders that she have sole parental responsibility for X, and X is the only child who is the subject of this application.  She seeks that X live with her.  Otherwise the application was silent as to time spent with either parent.  In my view, given the material before me, I’m satisfied that it is in X’ best interests that the maternal grandmother have sole parental responsibility for X and that X lives with her.  Given the risk issues that are raised about both parents in my view it is also appropriate to make orders that neither parent spend time with X. 

6. If either parent wishes to make an application to the Court then they would be able to seek that these orders be set aside, pursuant to r.16.05 of the Federal Circuit Court Rules 2001 (Cth), but they would need to address the very concerning matters raised by the Department, the grandmother and the children’s counsellors. As the Court needs to be satisfied that it is in the children’s best interests for them to spend time with their parents, and in this regard, s.60CC(2)(b) of the Family Law Act 1975 (Cth) is the relevant primary consideration; these children need to be protected from physical and emotional abuse. I am satisfied that the grandmother is able to protect them from that abuse. The grandmother has according to the evidence made considerable efforts to enable the children to have a relationship with their parents, but that has not been able to take place in a safe manner. In my view, it is entirely appropriate for the grandmother to cease trying to maintain those relationships until the parents actually address their issues and can show that they are safe for the children. These children deserve to have a safe, loving, consistent home.

7. It is clear that the grandmother is able to provide them with that support, and it is clear too that the grandmother has supports in place for herself and the children through the Victorian Aboriginal Health Service.  I have no concerns about the grandmother’s ability to provide that care and support for the children, so for these reasons I am going to make the orders that I indicated.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  5 April 2017