Adley and Nambour

[2008] FamCA 164

FAMILY COURT OF AUSTRALIA

ADLEY & NAMBOUR [2008] FamCA 164

FAMILY LAW – CHILDREN – Final parenting orders – orders sought by independent children’s lawyer and not opposed by either party. 

Family Law Act 1975 (Cth)

APPLICANT: Ms Adley

RESPONDENT: Ms Nambour

INDEPENDENT CHILDREN’S LAWYER: Wayne Dunstan

FILE NUMBER: MLF 5400 of 2002

DATE DELIVERED: 25 February 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 25 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P. Renwick

SOLICITOR FOR THE APPLICANT: Kennedy Guy

COUNSEL FOR THE RESPONDENT: Mr V. Caltabiano

SOLICITOR FOR THE RESPONDENT: Vince Caltabiano

INDEPENDENT CHILDREN'S LAWYER COUNSEL Mr M. Hebblewhite

INDEPENDENT CHILDREN'S LAWYER SOLICITOR Bowlen Dunstan & Associates

Orders

1. That the mother and paternal grandmother have equal shared parental responsibility. 

2. That the child … born … August 2001 live with the mother.

3. That the child spend time with the paternal grandmother:

   (a)From after school Friday until 6:00pm Sunday on alternate weekends;

   (b)For half of all term holidays and half the long summer holiday; and

   (c)Such other times by agreement including birthdays and other like occasions.

4. That for the purpose of changeover the grandmother collect the child at the commencement of the time from school on a school day and otherwise from the mother’s home and the mother collect the child at the conclusion of the time from the grandmother’s home. 

5. That the child be enrolled and attend at S Catholic Primary School.

6. That the mother and paternal grandmother, their servants and agents be restrained from denigrating the other to the child or in the presence or hearing of the child. 

7. That the mother is to keep the independent children’s lawyer and the paternal grandmother informed of her residential address and telephone numbers on which she can be contacted.

8. That all applications be removed from the active pending cases list.

9. That pursuant to section 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.

10. That the independent children’s lawyer be discharged within 14 days.

11. That the parties be at liberty to apply within 14 days of service of the orders with service upon the paternal grandmother to be effected by the Registrar of the Court by sending the Order by pre paid post to the paternal grandmother at … and to the mother care of the solicitor on the record. 

IT IS NOTED that publication of this judgment under the pseudonym Adley & Nambour is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 5400 of 2002

MS ADLEY

Applicant

And

MS NAMBOUR

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

(EX TEMPORE)

1. This matter comes before me as the final defended hearing of the applications for parenting orders for the child, born in August 2001. 

2. The applicant is the child’s mother.  The child lives with her mother.  The respondent is the child’s paternal grandmother.  The child’s father died in January 2004.  The paternal grandparents have played a significant role in relation to the child’s care both prior to and since the father’s death.  

3. The mother resides in the northern suburbs of Melbourne.  It has been the mother's case throughout that she would like to move with the child to the western suburbs area so as to be close to members of her family. 

4. The paternal grandparents also live in the northern suburbs.  Their daughter lives with them while other adult children maintain close relationships with them.  

5. Unfortunately, neither the mother nor the paternal grandmother, have attended today.  I accept that both are aware that the hearing is listed for today.  Their failure to attend is not explained.  An Arabic interpreter has been available for the use by the grandmother during the morning and would have assisted her. 

6. The court is assisted by the attendance of the independent children’s lawyer.  Solicitors for both the mother and the grandmother are also in attendance however, in the absence of their clients they have no instructions which might assist the court today.  

7. This matter has been under my management for some months now and I have read two reports of a psychologist, Ms M.  Ms M has provided a cogent and comprehensive background to the issues and competing proposals.  She has observed the child with both her mother and the grandparents.  She notes that the child relates reasonably well with her mother.  Despite the parties’ differing views about the present arrangements, Ms M reports that the mother relies on the paternal grandparents for assistance and they in turn share some of the parenting duties.  The grandmother enjoys a good relationship with the child. 

8. The child has spent considerable time in the care of her grandparents pursuant to orders of this Court made in March 2004.  In April 2005, she moved to the grandparents, with the consent of the mother.  Orders were made in November 2005 confirming this arrangement.  They provided for her to spend time with the mother by agreement, and in default of agreement from 10:00am to 7:00pm each Friday. 

9. The mother commenced proceedings in June 2006 seeking that the child live with her.  The child returned to her care pursuant to orders made by Senior Registrar Fitzgibbon in December 2006, which remain on foot.  These orders also provide for the child to have alternate weekend time, and one half of the school term holidays and other holidays, with the paternal grandparents.  They also require the mother to reside with the child in the northern suburbs. I understand that the dwelling in which she resides is owned by a family member and has been sold, with the completion of that sale due to take place in a matter of days. 

10. The child is in Grade One at S Catholic Primary School.  The proximity of the paternal grandparents' home to S school has meant that the paternal grandparents have been involved in the child’s school life.  There is some evidence that some of that involvement may have been disruptive.  However, my reading of the material, and the updated report, lead me to conclude that the involvement of the paternal grandparents has, on balance, been very positive indeed. 

11. Last week this matter came on for telephone mention.  The practitioner who represented the paternal grandmother, Mr Caltabiano, sought to be excused from continuing to act, notwithstanding that it was within seven days of the date fixed for final hearing.  Mr Caltabiano thought that the parties had discussions and may have resolved the matter.  However the solicitor for the mother, Mr Renwick, confirmed last week that he was instructed that the matter had not resolved.  In the event, I did not accede to Mr Caltabiano’s request to withdraw and he attends today as amicus curiae and Mr Renwick appears on behalf of the applicant mother. 

12. Pursuant to an order made on 8 October, 2002, Mr Dunstan of Victoria Legal Aid was appointed as the independent children’s lawyer for the child within the meaning of Division 10 of Part VII of the Family Law Act 1975.  As such, his role is to form an independent view, based on available evidence, of what is in the child’s best interests and then act in these proceedings in what he believes to be the best interests of the child.[1]  He is not a legal representative retained by the child and he is not bound by any instructions from the child.[2]  The role of the independent children’s lawyer is to deal impartially with the parties, to ensure that any views expressed by the child are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention.  The independent children's lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with proceedings[3] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the child to do so.[4]  The independent children's lawyer, who has been more than diligent in this fairly complex matter, has retained Mr Hebblewhite of counsel. 

    [1] s 68LA(2) Family Law Act 1975 (Cth).

    [2] s 68LA(4) Family Law Act 1975 (Cth).

    [3] s 68LA(5)(d) Family Law Act 1975 (Cth).

    [4] s 68LA(5)(e) Family Law Act 1975 (Cth).

13. Mr Caltabiano does not have instructions to enter into any negotiations, so it cannot be said that any discussions have been undertaken with a view to resolving the matter.  There have been some discussions, in a very broad sense.  Mr Hebblewhite submits that the most constructive course is to bring the proceedings to an end.  The court should make final parenting orders now, and thus bring litigation to an end because that would be in the child’s best interests.  He proposes that the current orders that are currently in place continue in force as final orders.  Such orders would provide for the child to continue at S Catholic Primary School, which would require the mother to live in reasonable proximity to that school.  The child has been living with these arrangements in place since December 2006 and is thus accustomed to the regime.  As I am unable to hear from either of the parties as to whether this regime is effective or ought be altered in some way, I propose to make these orders final orders.  

14. Mr Renwick confirmed that he arranged with his client to meet him at court today.  He makes no application arising out of his client's failure to attend.  He is not in a position to make submissions based on instructions but did draw my attention to ways in which the orders could be rendered more workable.  

    
    

    I accept all of those points as valid, and will adopt them.  As Mr Caltabiano has no instructions, he cannot comment. 

15. I bear in mind the objects of the Act and I place weight on considerations which relate to the best interests of children.  In particular, the benefit to the child of ending lengthy and intractable litigation which has the capacity to impact adversely on her, and her mother and grandmother directly and indirectly.  I have read the evidence which is in affidavit form and have had the benefit of the single expert witness assessments of Ms M.  I bear in mind that the evidence is untested by cross examination.  As there has been no cross examination, the court cannot make findings on facts which are in dispute and a number of facts are in issue. 

16. Proceedings in this court are private law proceedings, between individuals.  The court cannot compel a party to press his or her case.  As the mother and the parental grandmother are not present (for whatever reason), I am satisfied that the proceedings should be brought to an end and that final orders should be made.  That will not preclude applications for different orders if circumstances change. 

17. The best interests of the child are the paramount, albeit not the sole, consideration.  It is important that the child have a meaningful relationship with her surviving parent and with members of her paternal family.  I do give consideration to the mother’s expressed desire to move to the western suburbs to be closer to her own family.  However, she has been living with the existing arrangements since December 2006 and does not appear to press for variation to the existing orders.  I am satisfied that the child’s best interests will be met by adopting the Senior Registrar's orders of 18 December, with the following amendments:

    a)In relation to paragraph 4 (regarding time the child spend with the paternal grandmother), it will deal only with the period commencing today. 

    b)In paragraph 5, the changeover for the collection of the child on a school day should be at the school.  On a non-school day, such as holidays, it should be at the mother's home.

    c)Paragraph 6 (regard the school the child attends) should be refined to refer to the current time, and certainly the balance of 2008 and onward but it should specify that the child is to be enrolled and to attend the school. 

    d)Paragraphs 8 and 9 (regarding drug screening) can be deleted.

    e)I accept that it may be unreasonable for the mother be compelled to continue to reside in the northern suburban area, if that area were ever capable of definition.  It should be sufficient that the child resides in reasonable proximity to the named school.  The mother will be required to keep the independent children's lawyer, and the paternal grandmother, informed of her residential address and of telephone numbers upon which she can be contacted.

18. The orders for the appointment of independent children's lawyer will be discharged 14 days hence and all proceedings will be removed from the active pending cases list.

19. I will reserve to each party liberty to apply to vary or set aside these orders within 14 days of service on them of the orders.

20. I direct that service on the paternal grandmother be effected by the Registrar of the court by sending a copy of this order by prepaid post to the paternal grandmother at her address and to the mother, care of her solicitor on the record. 

21. The involvement of the independent children's lawyer will come to an end in two weeks' time.  By that stage the mother and the paternal grandmother should be aware of the orders.  I have heard from counsel for the independent children's lawyer and am satisfied that can be left to Mr Dunstan’s discretion, as to whether or not he discusses the outcome of these proceedings with the child, by telephone.  It seems to me that a personal meeting would not be warranted in these circumstances. 

22. I have been very much assisted by Mr Dunstan's contribution to the proceedings and his general presentation of the case on behalf of the child.  He has attended to the child’s interests with care and diligence.  

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett.

Associate: 

Date:  13 March 2008