Advanaced Family Law Assessment 1 2023

Advanced Family Law Assessment 1 Advanced Family Law Assessment 1 Fact Scenario Children of the parties: 1. Valentino: M, 13 yrs, born 18 July 2010 2. Lucia: F, 10 yrs, born 22 May 2013 3. Joe: M, 8 yrs, born 15 April 2015 4. Sophia: F, 4 yrs, born 28 January 2019 Parties: Applicant: Martina, Maternal Grandmother, 56 years old (legally represented) First Respondent: Emilia, Mother 32 yrs (unrepresented) Second Respondent: Jiemba, Father 36 yrs (unrepresented, no response) Third Respondent: Kirra, Paternal Aunt 32 yrs (legally represented) Background:  All four children are the biological children of the first and second respondents (Emilia and Jiemba)  The oldest 3 children moved to live with the applicant (Martina, maternal grandmother) in October 2018, prior to which they moved between the care of their parents and Martina  Jiemba has not seen any of the children for over 4 years.  Sophia has lived only with Martina  Valentino moved to live with Kirra 12 months ago, when he was 12 yrs of age Martina's initiating Application and Affidavit sworn and filed 13 July 2023 material included the following information:  Martina and her husband migrated from the Italy to Australia when Emilia was 10 yrs and Emilia's younger brother, Joe, was 8 yrs.  Martina's husband passed away 6 years ago and Joe now lives in Perth. Joe lives with his male partner and has no children. He is estranged from Martina and has infrequent contact with Emilia.  Martina's spoken English is limited and she cannot read or write in English. In the past she relied on her husband, Emilia and Joe to assist with translating. More recently she relies on Valentino and sometimes Lucia, particularly in official or medical situations.  Martina is very involved with the local Italian and church community and raised Emilia and Joe to have good Christian values, sending them to a K-12 Catholic school. Emilia was a well- behaved and compliant child until she became friends with a group that Martina did not 1

Advanced Family Law Assessment 1 approve of in late high school. As a result, Emilia started drinking, going to parties and sometimes staying out overnight without permission. This led to arguments between Emilia and her parents. When Emilia was 18 yrs she started a relationship with Jiemba, who was the older brother of Kirra, one of Emilia's close school friends. It was Jiemba who introduced Emilia to alcohol and drugs. Emilia fell pregnant to Jiemba, and had Valentino when she was 19 years old. Against their wishes, Emilia left her parent's home to live with Jiemba when she was 5 months pregnant.  Emilia and Jiemba had a volatile, on and off again relationship for the next 8 or so years. Jiemba was frequently absent from the family for weeks at a time and has a significant drug and alcohol dependence. The relationship ended in October 2018 when Emilia was pregnant with Sophia and there was an argument in which Jiemba became phyically violent by punching and chocking Emilia and Valentino ended up running to the neighbours who called the police. Martina has not seen Jiemba since and she does not believe Emilia has either. Jiemba has made no attempts to see the children since then.  He has never met Sophia.  Across the period of Emilia and Jiemba's relationship there were a number of instances where Jiemba was violent towards Emilia and a Family Violence order was taken out against him by the Police and heard at the Local Court of NSW at Fairfield on at least 2 occasions in September 2016 and November 2017, despite the ADVO Emilia and Jiemba continued to live with each other and did not inform the Police. The children were regularly exposed their parent's drug taking behaviour, volatile arguments between Jiemba and Emilia, and Jiemba's physical violence towards Emilia. In the last instance 4 years ago, Jiemba was also violent towards the children. The children moved to permanently live with Martina directly after that incident. Prior to that the children had regularly moved between Martina's and their parents' care, as Martina would take them in when Emilia was using drugs heavily and unable to provide for them.  Since moving fully into her care in January 2019, the children have been in good health. Prior to that they had experienced a number of health issues, including dental problems and chronic head lice. The children were frequently involved with DCJ from 2010 to 2018 due to drug use, neglect and family violence. Valentino's school had made notifications about possible neglect on two occasions in May and November 2018. The child welfare authority have not been involved since the children moved permanently into Martina's care.  Martina receives a Centrelink pension and some money from Emilia for the children from time to time.  Emilia continues to struggle with staying away from drugs and alcohol and Martina says that Emilia believes that the children are better off in her mother's care. Martina lets Emilia see the children whenever she can be sure that Emilia is doing ok and has allowed one or two of them to spend a night in Emilia's care when Emilia has accommodation. Emilia continues to experience housing instability and her ongoing drug use has made maintaining employment difficult. Martina will not have Emilia living with her as she does not want the children exposed to Emilia's drug and alcohol taking.  Martina and Emilia's relationship has been difficult ever since Emilia met Jiemba. Martina has tried to guide Emilia in how to care for the children, however, Emilia often put pacifying Jiemba ahead of the children's needs. Before the children moved to live permanently with her, Martina worked hard to try to keep the children connected to their Italian culture and faith in the face of Emilia's apparent rejection of it. She blames Jiemba for this rejection. 2

Advanced Family Law Assessment 1 Emilia’s Response and Affidavit material sworn and filed 14 August 2023 contained the following:  Emilia's initiating material is consistent with Martina's in regards to much of the history and the current care arrangements for the children.  Emilia's material also included the following:  Martina was a very strict mother and tried to stop Emilia mixing with her non-Italian friends during high school and didn't want her attending any social events outside of those of their church.  Jiemba assisted Emilia to separate from her over-powering mother, but relationship with him was sometimes really great, at other times there was lots of arguments and Emilia felt quite frightened of Jiemba. On a few occasions he hit her, often after they had been out and both had been drinking.  Emilia and Jiemba sometimes used drugs and alcohol together, and Martina would help out when they needed assistance with caring for the children. Since the children have been living with Martina, Emilia has been giving Martina some of her Centrelink money to support the children.  Emilia is not currently working but is trying hard to get her life in order and is committed to being a good mother so the children can spend very regular overnight time with her. She accepts that she could not manage all of the children living with her full time.  Martina could not accept that Valentino is growing up and becoming more independent from her.  Emilia says Valentino has experienced Martina's overpowering and strict parenting in the way she did as a teenager.  Emilia believes that Kirra loves Valentino and can provide him with the care that he needs at this stage of his life.  Emilia has experienced her children ask about their Aboriginal culture but that her mother tells the children “ Shut up, stop talking like that, you are Italian, don’t tell anyone that you are Aboriginal, they are not your family!” Emilia seeks both interim and final orders that she and Martina have equal shared parental responsibility for Lucia, Joe and Sophia and that they live with Martina and spend regular overnight time with her. Emilia also seeks interim and final orders that Valentino lives with Kirra, that she and Kirra share parental responsibility for Valentino and that Valentino have regular visits with his siblings and Martina. As an alternative, if Valentino is not to live with Kirra, Emilia would like him to live with her rather than with Martina. Kirra’s Response and Affidavit sworn and filed 28 August 2023 material:  Kirra's initiating material is consistent with much of Martina and Emilia's but also included the following:  Kirra lives about 15 minutes from Martina’s house.  Kirra has been close to Valentino since he was a baby, often minding him for Emilia and Jiemba before he moved to permanently live with Martina. Since then, she has seen all of the children every few months, when they are with their mother. She says she has always had a special bond with Valentino due to caring for him so much when he was younger.  Kirra says that she questioned Martina’s judgement as she would often allow the children to stay with Emilia when she had accommodation just to give herself a break or when Martina and her husband had church events on. However, there were times that Emilia was clearly 4

Advanced Family Law Assessment 1 heavily using drugs at the time and she believes that Martina placed the children at risk by doing so. On one occasion Kirra called the police to do a welfare check of the children in Emilia’s care on 18 April 2020. The police indicated that they arrived to find Emilia passed out on the lounge, the property in a state of disarray and the older children looking after Sophia who was only a toddler at the time. The Police asked Martina who had to leave a church event to come and collect the children on that occasion. Kirra said that Martina downplayed the event saying “ she was just tired, Valentino was making sure nothing happened to the kids anyway”.  Around 18 months ago, Valentino began calling Kirra when he was distressed about arguments he was having with his Grandmother, Martina. Kirra did what she could to support him but became increasingly concerned about what she felt was serious deterioration in Valentino's mental health.  At his previous school, Valentino's attendance had become very poor and he had fallen behind the expected educational milestones for his age. Valentino told Kirra that sometimes his absences were because he felt too sad to go to school, and other times it was because his grandmother needed him to go to appointments to translate for her or look after the younger kids while his grandmother was involved in the church.  Kirra says Valentino has been much less distressed since moving to live with her. Kirra has moved Valentino, with Emilia's consent, to a public high school and Valentino is feeling more comfortable in this environment. His school attendance is now good.  Martina has been sending threatening text messages to Kirra, saying that god will strike her down if she doesn’t return Valentino to her and that she doesn’t believe in the Aboriginal culture and to keep Valentino away from those ‘satanic’ practices as he is Christian.  Kirra is concerned that if Valentino was to return to Martina's care his mental health would decline significantly and he would be at risk of self-harm.  Kirra says that Valentino is really enjoying learning about his Aboriginal culture and building stronger connections with his extended paternal family. Kirra is concerned that the younger children will not have a connection to their indigenous culture if left in the care of Martina’s alone and she would like to be able to involve the younger children in local Aboriginal cultural events and practices.  While Emilia is her friend, Kirra believes that Emilia is still having difficulty in breaking her bad habits with drugs and alcohol misuse and is not in a position to meet Valentino's needs. Kirra seeks both interim and final orders that Valentino lives with her and that she has sole parental responsibility for him. She seeks interim orders that she be allowed to take all 4 children to local Aboriginal cultural events and practices, of up to 2 per month. Jiemba has not submitted a response nor has he attended any court events. Reports  The parties did not have the financial means to fund a single expert report.  The next available Child Impact Report is not until early December 2023 and the Judicial Registrar deemed that too long to wait for without an interim determination.  S69ZW material from NSW Police and DCJ confirm the events disclosed with respect to risk alleged where the Police or DCJ have been involved with the family. 5