AB & SS

[2006] FamCA 495

[2006] FamCA 495

FAMILY LAW ACT 1975

IN THE FULL COURT      
OF THE FAMILY COURT OF AUSTRALIA                  Appeal No SA14 of 2006
AT MELBOURNE  File No ADF462 of 2004

BETWEEN:

AB
Appellant Father
- and -

SS
Respondent Grandmother

REASONS FOR JUDGMENT

CORAM:  FAULKS DCJ, KAY & COLEMAN JJ
DATE OF HEARING:                 1 June 2006
DATE OF JUDGMENT:             1 June 2006

APPEARANCES:  Mr Mellows of Counsel, instructed by Hugh McLean, Barrister and Solicitor, 61 Carrington Street, Adelaide, SA 5000, appeared on behalf of the Appellant Father.

Mr McQuade of Counsel, instructed by Dixon Gallasch, Barristers and Solicitors, 100 Philip Highway, Elizabeth South SA 5112, appeared on behalf of the Respondent Grandmother.

AB and SS

SA14 of 2006

CORAM:  FAULKS DCJ, KAY & COLEMAN JJ

DATE OF HEARING:  1 June 2006

DATE OF JUDGMENT:                1 June 2006

Catchwords:           CHILDREN – Residence – Father’s appeal against interim order giving residence to the maternal grandmother with whom children had lived for three years – Long term residence to be conditional upon grandmother obtaining better accommodation – Problems with each party’s care of the children – Approach of trial Judge in looking for the least detrimental alternative for the children consistent with legislative requirement of seeking to advance the children's best interests – No errors of law or relevant errors of fact on part of trial Judge demonstrated – Appeal dismissed.

KAY J:

1. It is proposed to deliver reasons in short form in accordance with the provisions of s 94(2A) of the Family Law Act 1975 (Cth).  I am of the opinion that the appeal does not raise any question of general principle, and accordingly it is appropriate that we deliver a short judgment only.

1. The case concerns an appeal by the father against an interim order made by Murray J at the Adelaide registry on 1 March 2006 in a case that involved competing claims for residence of three children:A  , aged nine; B, aged eight, and C, aged six. 

1. The parties, with competing claims for residence, were the maternal grandmother, who is the respondent to the appeal, and the father who is the appellant in these proceedings.

1. The orders that were made adjourned the further hearing of the residence applications to a date said to be “about three months hence”, that is, after 1 March 2006, to then hear further evidence from the grandmother as to any new accommodation she was able to provide.  The trial judge had indicated in her reasons for judgment that were the grandmother able to provide adequate accommodation for the children at the conclusion of that period, she would make a residence order in favour of the grandmother; otherwise she would make a residence order in favour of the father. 

1. The father has appealed this interim order and has sought an order from us that he be granted residence of the children.

Background

1. The short background of the case is that the mother of the children has been effectively out of the picture for some time and the children have been in their grandmother's care as a result of a placement by the South Australian Department of Family and Youth Services since about March or April 2003.  At that time, the father was incarcerated in prison.  At the time of the trial the children had remained in the grandmother's care for over two and a half years, save that some months after the father was released from prison in about February 2004, he took the children for an overnight visit and did not return them. 

1. Eventually the girls at least were returned to the grandmother fairly shortly but the boy was retained by the father until orders were made later in 2004 granting the grandmother residence of the children and the father contact.  That situation has continued from that time until at least the time of the trial, the father having alternate weekend and half school holiday contact.

1. The grandmother urged the Court to make an order that the children remain residing with her in a household in which three half-siblings also resided, they being a boy, D, aged 18, a girl, E, aged 16, and a boy, F, aged three.  Her Honour was particularly concerned about the grandmother's household in that it was overcrowded, the children having to share accommodation in what her Honour concluded were less than satisfactory circumstances.  The grandmother, however, indicated that she was endeavouring to obtain fresh accommodation from the relevant government authorities and was hopeful that such accommodation would be forthcoming in some three months.

1. The father's proposal was that the children should live with him.  He had no particular plans for long-term accommodation for the children but was anxious to house them with the assistance of an uncle, in circumstances where the father was sleeping in the lounge room, the girls were sharing one room, the boy had his own room and the uncle was sleeping in the third room.  Her Honour viewed the situation with the uncle as being the least unsatisfactory arrangement relating to accommodation but was concerned that it may not have a sufficient degree of permanence about it. Indeed it was the father's case that if and when he could he would move from the uncle's home, but was not certain as to where he could move to.

1. A counsellor had seen the parties and had prepared a welfare report.  The counsellor had indicated that the children were attached to both of the competing claimants but the counsellor also indicated that there was a degree of stability in the grandmother's home which was absent from the father's life, although each of the households presented some difficulties in relation to the children.  There were questions about the father's history of drug taking and present involvement.  There were questions about the grandmother's involvement with alcohol consumption.  Each of the parents had some degree of difficulty in their history of caring for the children.  There were suggestions of untreated lice infestation in the grandmother’s care. There was a history of poor attendance at school, particularly when they were in the father's care.

1. Her Honour categorised the case as effectively looking for the least detrimental alternative.  This was consistent with an approach that was referred to by the Full Court in Hall v Hall (1979) FLC 90-713 at 78,822. In what was a difficult decision for her Honour and one that her Honour obviously was concerned about, she outlined all of the competing aspects of the case, both positive and negative, and concluded that the long-term benefit for the children in living with their grandmother in the event that the grandmother was able to provide adequate housing outweighed the benefits of living with the father.

Discussion

1. The appeal was run before us on the basis that there had been some error of principle in the approach taken by the trial judge or alternatively that there had been errors of fact relied upon by the trial judge or alternatively that the trial judge should have concluded that the welfare of the children was best advanced by being placed with their father. 

1. This was effectively a weight appeal. We were not taken to any error of principle that could be readily identified by Mr Mellows on behalf of the father, and indeed it is difficult to see that her Honour approached the matter other than in accordance with the legislative requirements.   She identified the relevant legislation, she carefully went through the relevant considerations and reached a conclusion, having identified all of the relevant matters, that the welfare of the children would be best advanced, as I have indicated, by remaining with the grandmother if and when she could provide them with adequate accommodation.

1. From my point of view, none of the matters that were identified on behalf of the father as being mistakes of fact were either mistakes of fact or relevant mistakes of fact.  Her Honour had postulated that the uncle would eventually find it less than satisfactory to have his house occupied by the father living in the lounge room and the children living in the house.  Indeed, that was, I would say, simply an observation of the likelihood of the human condition rather than a finding of fact in any event, and it was certainly something that was open to her Honour.  The other areas in which it was suggested that her Honour had made errors were difficult for Mr Mellows to identify, and indeed, in my view were not established.

1. In the circumstances, this being an exercise of discretion that was clearly open for her Honour to make,  nothing that has been raised by the appellant in the grounds of appeal or the matters argued by him would lead me to interfere with the judgment of the trial judge.  I would dismiss the appeal.

FAULKS DCJ:

1. I concur with his Honour's judgment and the reasons.  Therefore I would also dismiss the appeal.

COLEMAN J:

1. I too would dismiss the appeal for the reasons given by Kay J.

FAULKS DCJ:

1. The formal order of the court is:

1.        The appeal be dismissed

2.        The application for costs is refused.

I certify that the 18 preceding
 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.



Associate