FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
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I discharge Order 5 as contained in the Minute of Final Consent Orders filed [...] March 2024 in the Magistrates Court of Western Australia as incorporated into the orders of Honourable Magistrate of [...] August 2024.
I discharge Order 3 of the orders made by Honourable Magistrate on [...] May 2025 that restrain the paternal grandmother from changing the principal place of residence of X from the township of Town D in New South Wales.
The matter is listed for one day for final hearing at 10.00am on 11 March 2026.
The paternal grandmother is to file any amended initiating application and a single consolidated affidavit from each witness she intends to rely upon by 4.00pm on 13 February 2026.
Any party resisting the orders sought by the paternal grandmother are to file a response and a single consolidated affidavit by any witness they rely upon at the final hearing of the matter by 4.00pm on 27 February 2026.
The paternal grandmother is to file a case outline document by 4.00pm on 6 March 2026.
In the absence of filing of a response and material as set out in the above orders the matter will proceed on an undefended basis.
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Note: The form of the order is subject to the entry in the Court's records.
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.
[6]
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
[7]
Those proceedings concern X who is currently aged about 12 years, being born in 2013. X's parents are Ms Dodson and Ms Avery. The applicant in the proceedings is Ms Conly, who is the mother of Ms Avery. Ms Avery has indicated that she will submit to the orders of this court without participating, such matters being reflected in previous orders made by Senior Judicial Registrar Hiles. Ms Dodson has not participated in today's proceedings, nor has she filed material in respect of today's proceedings.
There are final consent orders that provide for X to live with the paternal grandmother, that is in circumstances where the paternal grandmother lives in Town D, New South Wales, as does Ms Avery. Ms Dodson lives in Western Australia. The final consent orders also provided for X to spend face-to-face time with Ms Dodson in Western Australia during school holiday periods, including each Christmas break. The orders that provided for the school holidays other than the Christmas break have been suspended as the proceedings were reopened in the Magistrates Court of Western Australia following issues arising as to neglect and safety for X.
The current application before the court is for the suspension of the Christmas time orders for X to spend time with Ms Dodson and also for the discharge of an injunction imposed by the Magistrates Court of Western Australia that prevents the paternal grandmother from relocating X's residence outside Town D, New South Wales.
The paternal grandmother seeks to relocate, in the interim, X's residence to the Town E area of New South Wales.
A child impact report has been prepared that sets out the background to the current proceedings. In September 2022, X moved to Town D to live with her grandmother. At that stage the indicators are that X had suffered severe neglect and was struggling to function, being described at times as feral in her presentation. At about that time Ms Avery was also living in Town D. Ms Avery spent regular time with X but has now ceased unsupervised time due to mental health issues experienced by Ms Avery meaning that at times she appears to be a physical danger to X and acts in an unpredictable fashion. While in Town D the paternal grandmother has organised significant medical and educational support for X, leading to a significant improvement in X's day-to-day functioning both generally and specifically in an educational environment.
Since moving to Town D, X has spent regular time with Ms Dodson in Western Australia until an allegation arose, as reported it seems by Ms Avery, of X asserting that in the December 2024 / January 2025 period that she spent with Ms Dodson, that Ms Dodson had touched her inappropriately "down there". The quote relates to X's description of the matter to the report writer. More graphic explanation of the allegations was provided by Ms Avery. The further circumstances of X's visits to Ms Dodson occur in the context of one of Ms Dodson's former partners apparently suffering criminal conviction in relation to the possession of child sexual abuse material and another former partner of Ms Dodson violently assaulting her in X's presence. The report records that while X would like to spend time with both Ms Dodson and Ms Avery, she wishes to remain living with the paternal grandmother.
The affidavit material of the paternal grandmother, and as recorded in the report, indicate that X is a vulnerable person who experiences oppositional defiant disorder, possible autism spectrum disorder and PTSD, as well as requiring significant orthodontic treatment.
The twin driving motivations for the application before this court are to suspend X's travel to Western Australia to spend time with Ms Dodson. Noting that these are interim proceedings and concrete factual findings are unable to be made on that basis, it is a requirement that the court consider X's best interests in determining what orders should govern her parenting arrangements. Significant under those considerations is the requirement to provide for X's safety. Although no determination can be made at this point of the proceedings that X has been the subject of sexual abuse, the matter reported by X to the report writer is sufficient to say that there is an unacceptable risk of abuse of a serious nature were X to spend time with Ms Dodson. Whether this remains the case after a full analysis of evidence at a final hearing is a different question. However, that is a matter sufficient to discharge the orders for X to spend face-to-face time with Ms Dodson.
The other driving matter is that the paternal grandmother seeks to relocate X to the Town E region. There are a number of consequences of a relocation of X to Town E. The first is that X will no longer be proximate to Ms Avery who resides in Town D. Despite this, Ms Avery indicated to the report writer her agreement to X undertaking such a move in expectation that she would be able to potentially spend time with X notwithstanding such a move. The impetus behind the move is that the paternal grandmother has secured for X a special education class at School C as X is due to commence high school in 2026. The evidence points to such a facility not being available in Town D. The paternal grandmother gives evidence that the various supports that are available to X in Town D will also be able to be made available to her in Town E. Further benefit for X is that as she requires orthodontic work there is an orthodontic practice in Town E, while there is not an orthodontic practice available in Town D.
Further difficulties are encountered by the paternal grandmother and X in remaining in Town D. They are currently resident in temporary accommodation; the more permanent accommodation being rendered unsuitable by a mould infestation.
Noting that a move to Town E would not appear on its face to render potential travel to Western Australia any more difficult than where X currently lives in Town D, noting that there is somewhat of a hiatus in X's face-to-face time with Ms Avery, at least in an unsupervised context, and noting Ms Avery's previous indication to the report writer, it appears for the nurturing of X's development and further provision of adequate services to her that it be appropriate that the injunction be discharged that prevents her movement outside of Town D in terms of residence, and allow her to relocate to the Town E district.
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I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.
Legislation Cited (2)
Circuit and Family Court of Australia (Family Law) Rules 2021