Zientek & Granger
[2025] FedCFamC1F 170
•3 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Zientek & Granger [2025] FedCFamC1F 170
File number(s): NCC 2228 of 2023 Judgment of: SMITH J Date of judgment: 3 March 2025 Catchwords: FAMILY LAW – PARENTING – Undefended hearing – child living with paternal grandmother - paternal grandmother and the Independent Children’s Lawyer seek the same orders – mother and father have failed to consistently engage in proceedings – threshold for an undefended final hearing met - evidence establishes paternal grandmother is child focused and has and will facilitate a relationship with both parents and the maternal grandparents as appropriate – Orders for child to live with the paternal grandmother - the paternal grandmother to have sole parental and decision making authority – ancillary orders Legislation: Family Law Act 1975 (Cth), Pt VII, s 60 B, 60CA, 60CC 65AA Division: Division 1 First Instance Number of paragraphs: 30 Date of hearing: 3 March 2025 Place: Newcastle Solicitor-Advocate for the Applicant: Mr Lindeman Solicitor for the Applicant: Lindeman Lawyers For the First Respondent: The First Respondent did not appear For the Second Respondent: The Second Respondent did not appear Solicitor-Advocate for the Independent Children's Lawyer: Ms Johnson Solicitor for the Independent Children's Lawyer: Legal Aid NSW Port Macquarie ORDERS
NCC 2228 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ZIENTEK
Applicant
AND: MR GRANGER
First Respondent
MS MCCAIG
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
3 MARCH 2025
THE COURT ORDERS ON A FINAL BASIS THAT:
1.All extant applications be dismissed.
2.There be no order as to costs.
Decision Making
3.The applicant paternal grandmother have sole decision making responsibility for the child, X born in 2015 (“the child”).
4.In exercising her decision-making responsibility pursuant to order 1 above, prior to making any major long term decisions for X (except in urgent circumstances) the paternal grandmother will seek input from the mother and father, and take into consideration their views and wishes prior to make any final decision.
Live with/spend time with arrangements
5.The child lives with the paternal grandmother.
6.The child spends time with the mother as determined by the paternal grandmother, noting that the paternal grandmother may require any such time to be supervised.
7.The child spends time with the father as determined by the paternal grandmother, noting that the paternal grandmother may require any such time to be supervised.
Restraints
8.The paternal grandmother is restrained from permitting the father to reside at her residence.
9.The paternal grandmother is restrained from permitting the child to spend overnight time at the father’s residence unless the paternal grandmother is also present during the overnight time.
10.The paternal grandmother is restrained from bringing the child into contact with Mr B born in 1949.
11.The parents are restrained from drinking alcohol in excess of the legal driving limit 24 hours prior to or during the time that the child is in their care.
12.The parents are restrained from consuming illicit substances 24 hours prior to and during the time that X is in their care.
Passport Order
13.Pursuant to Section 11(1)(b) of the Australian Passports Act 2005, the paternal grandmother is entitled to apply for a passport/travel document for the child X born in 2015, without the requirement for either of the parents to provide their consent or sign any requisite documents.
14.Pursuant to Section 65Y of the Family Law Act 1975, the child X born in 2015 is permitted to travel internationally with the paternal grandmother (or a person authorised by the paternal grandmother) without either parent’s written consent.
Notification Requirements
15.In the event that the child requires medical attention whilst in the care of either the mother or the father, the parent who has the care of the child will immediately notify the paternal grandmother and provide all relevant information including details of treating medical practitioner.
16.In the event that the child requires hospitalisation or major medical treatment, the paternal grandmother will notify each of the parents as soon as reasonably practicable.
Aboriginal culture
17.The paternal grandmother will use her best endeavours to ensure that the child remains connected to her Aboriginal culture, including but not limited to:
(a)Encouraging the child to participate in cultural events in the community and at school;
(b)Speaking in a positive manner in relation to the child’s culture.
18.In the event that the child expresses a wish to learn more about her cultural heritage, the paternal grandmother will facilitate any such reasonable requests from the child
Provision of Orders
19.The paternal grandmother is at liberty to provide a copy of these orders to X’s school, X’s treating medical providers and any NDIS service providers.
THE COURT NOTES THAT:
A.The Court notes that the maternal grandmother is the holder of information in relation to X’s Aboriginal heritage and the paternal grandmother intends to continue to facilitate a relationship with X and the maternal grandmother.
B.Pursuant to ss 62B and 65DA(2) of the Family Law Act 1975 (Cth), 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 the Annexure and these particulars are included in these Orders.
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 Zientek & Granger has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SMITH J:
These are parenting proceedings to determine the final parenting orders pursuant to the Family Law Act 1975 (Cth) (“the Act”), in the best interests of X, born in 2015 (“the child”).
The parents are the first respondent father, Mr Granger, born in 1982, and the second respondent mother, Ms McCaig, born in 1983. The parents were in a relationship from 2003 through to separation in early 2023. The mother had another child from a prior relationship who sadly passed away.
The applicant in these proceedings is the paternal grandmother, Ms Zientek, born in 1958. The child lives with the applicant paternal grandmother, and has since 1 June 2023.
I note that the maternal grandmother, Ms D, is not a party but has participated in the family report process, and the paternal grandmother and the maternal grandmother have maintained a working relationship.
Undefended hearing
These proceedings are being heard on a final undefended basis, in circumstances where the father and the mother have failed to actively engage with proceedings on a consistent basis.
The father initially engaged with proceedings, however, on 16 October 2024, the father's legal representative filed a notice of ceasing to act, and since that time the father has not participated in the proceedings. He failed to attend either part of the dispute resolution conference.
The mother has engaged sporadically throughout the proceedings, and while she attended some earlier court events, including the Family Report interviews, and did indeed attend Part 1 of the dispute resolution conference, she did not attend the second part of the dispute resolution conference, and neither the mother nor the father have attended recent court events.
Neither the father nor the mother attended on the last mention. In these circumstances, where they have disengaged and where X needs a degree of finality and where Court resources are involved in constantly mentioning a matter, not to mention the legal costs being incurred by the paternal grandmother and the Independent Children’s Lawyer (“ICL”), even to the extent to which they are paid for by the public purse, it is appropriate to consider an undefended hearing.
I note that neither parent appeared today, and there is evidence that they were notified that the matter was listed today. The paternal grandmother and ICL move for an undefended hearing, and I am satisfied that the criteria for dealing with the matter on a final basis on an undefended hearing are comfortably established. I proceed on that basis.
I note the ICL produced a court book, including the relevant material from all parties and the ICL. I appreciate that material. I note the material has been considered and, in particular, the court has considered the Magellan report dated 1 March 2024 and the Family Report dated 23 May 2024, and those reports substantially cover the relevant issues.
Background
X lived with her parents from birth. In early 2023, there was a significant domestic violence incident between the parents. The father was charged and an apprehended domestic violence order (“ADVO”) to protect the mother from the father was made. Two months later, the father was charged with breach of the ADVO and refused bail. On 1 June 2023, the maternal grandmother, acting protectively, contacted the paternal grandmother and requested the paternal grandmother collect the child, as the mother was, in effect, unable to cope. There is a final ADVO between the parents until mid-2025 which prevents any contact.
I note that the father has a criminal history dating back to 1994. It is a criminal history that continues. It involves many serious offences, including property offences, assault, drug-related offences and breach ADVO among others.
The father has three separate court events listed for sentencing in early 2025, and there appears to be a significant prospect that he will again serve a custodial sentence. There is evidence that the child had witnessed family violence, primarily perpetrated by the father, and been exposed to that.
The mother attended upon the Family Report process, however, her current position and parenting capacity is not known and, indeed, given her difficult past and her decision not to continue engaging, the court can have no confidence that the mother has any real current capacity to care for the child.
The Family Report interviews disclose that the mother has had, on any view, a very difficult life, and she faces many personal challenges, and those challenges appear to significantly impair her parenting capacity. I say that without any intended criticism of the mother. It is a statement of the relevant facts which makes the proposed orders which I intend to make clearly in the child's best interests.
Terribly, in late 2023, the child was sexually assaulted by the paternal grandmother's then-husband, Mr B. Mr B was charged, and the final ADVO was made in mid-2024, protecting the child from Mr B. That is enforceable until mid-2026. The paternal grandmother has separated from Mr B. Their jointly owned property has been sold and their divorce hearing is listed next month. I am comfortably satisfied, as the ICL submitted, that the paternal grandmother had no involvement in this crime, and has prioritised X's wellbeing in this regard. She was shocked and disgusted and has moved to separate herself from Mr B and to protect the child.
Although there are no interim orders in place, the paternal grandmother has facilitated the child spending time with each of the parents and with the maternal grandparents, as she has seen to be in the child's best interest. I am satisfied, as submitted by the ICL, that the paternal grandmother has prioritised and will continue to prioritise X's best interest in this regard too. While in the paternal grandmother's care, she has pursued the child's medical assessment, and that has resulted in diagnoses of ASD, ADHD and ADD. The paternal grandmother has diligently pursued treatment and assistance at school, and that has resulted in, it appears, significant improvements for the child.
The child's diagnoses appear to mean that she has a high need for predictability and routine and becomes angered by changes in routines. She also suffers from anxiety about the future. The child, even more than most other children, requires a primary caregiver who can offer her stability and routine, and I am comfortably satisfied that the paternal grandmother has demonstrated that she is able to do this for the child. I will not go through the procedural history, given this is an undefended hearing.
The ICL’s proposal, contained at page 208 of MFI 1, and which is MFI 1.19, has been adopted by the paternal grandmother. So, there is only effectively one proposal before the court. Order 3 of the proposal is that the child live with the paternal grandmother in circumstances where it is clear that there is no other competent adult who seeks to have the child live with them, and where I am comfortably satisfied that the paternal grandmother provides a safe harbour for the child. That is clearly the appropriate order.
The other proposal in terms of parental responsibility is that the paternal grandmother have sole decision-making responsibility, but that in exercising her responsibility prior to making any major long-term decisions, except in urgent circumstances, she will seek input from the mother and father and take into consideration the views and wishes prior to making any final decision, but that will not place an impediment upon her ability to act. I think that is an appropriate course. Again, the father and mother have not participated and do not apparently have any current capacity to exercise parental responsibility. The child is lucky that she had someone who is competent and willing to step up.
The proposal is that the child spends time with the mother and/or with the father as determined by the paternal grandmother and that the paternal grandmother, in the exercise of her sole decision-making responsibility, may choose to require supervision. I will not go into the detail, but it is clear that the issues faced by each parent mean that their time must be subject to a determination by someone such as a paternal grandmother who is competent and unimpaired as to whether they are presently able to spend unsupervised time
The ICL also proposes restraints, which the paternal grandmother agrees to, sensibly, and these include that the paternal grandmother is restrained: from permitting the father to reside at her residence, from permitting the child to spend overnight time at the father's residence unless the paternal grandmother is also present, and from bringing the child into contact with Mr B. The paternal grandmother agrees to all of those restraints, and I think it is appropriate. I am sure she would do this in any event, but I think it is appropriate to make those orders where she consents. The ICL also proposed restraints on the parents. Since they are both parties, even though it is undefended, I will make these orders. Ultimately, the real protection is that the paternal grandmother will not allow the child to spend time with the parents when they are impaired.
The ICL seeks standard passport orders, and I think that those are appropriate. In terms of the communication, the ICL proposes, and the paternal grandmother agrees, that in the event the child requires medical attention in the care of either the mother or the father, the parent will notify the paternal grandmother, and again, effectively, they will only spend time with the child when the paternal grandmother allows it. I think that is appropriate. Also, the paternal grandmother agrees that if the child requires hospitalisation or needs major medical treatment, the paternal grandmother will notify the parents as soon as reasonably practical.
The child is Indigenous, and I will come to this in more detail in due course, but the paternal grandmother has agreed that she will use her best endeavours to ensure the child remains connected to her Aboriginal culture, including, but not limited to, encouraging the child to participate and speak about this culture in a positive manner. I note in this regard that the paternal grandmother has voluntarily maintained a connection with the maternal grandmother, who is the relevant knowledge holder.
The paternal grandmother has liberty to provide a copy of these orders to the child's school, to medical practitioners and the NDIS provider.
It is noted that the maternal grandmother is the holder of information related to the child's Aboriginal heritage, and the paternal grandmother intends to continue to facilitate a relationship between the maternal grandmother and the child. And, as I have said, I note the maternal grandmother took part in the Family Report interviews, and there appears to be a good working relationship between the two grandmothers, which again is in the child's best interest and speaks well of both grandmothers.
I note that the objects of Pt VII of the Act are to ensure the best interests of children are met, including by ensuring their safety, and to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989 (see s 60B). The paramount consideration is the child's best interests per ss 60CA and 65AA.
In terms of parental responsibility, the presumption in favour of the father is rebutted by his family violence. The mother has not participated. Realistically, there is only one person here seeking parental responsibility before the court, and that is the paternal grandmother. That is also the only safe place and the only person seeking the child live with her. So, realistically, the child is to live with the paternal grandmother, and she is to have sole decision-making responsibility, subject to the agreement she has given that she will consult with and consider, but not be bound by, the parents.
I turn my mind to section 60CC. I am required to consider what arrangements will promote the child's safety, and the only safe place for the child to live at the moment is with the paternal grandmother. The views of the child, given her age and given the other factors, are not relevant. I note that the child has significant developmental issues and psychological needs. As indicated in the Family Report. I note that the paternal grandmother has the capacity to provide for the child's developmental, psychological, emotional, and cultural needs, but that neither the father nor the mother, unfortunately, presently do. There would be, I think, a benefit to the child of being able to have a relationship with each of the child's parents and also with the maternal grandmother, when it is safe to do so. I say "safe to do so" in respect of each of the parents, not the maternal grandmother.
I make the orders.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 17 March 2025
0
0
1