Andrews and Grant and Anor

[2012] FamCA 824

FAMILY COURT OF AUSTRALIA

ANDREWS & GRANT AND ANOR [2012] FamCA 824

FAMILY LAW – CHILDREN – Interim Consent Orders – With whom a child lives – With whom a child spends time – With whom a child communicates – Orders that child spend time with paternal grandmother – Orders that father communicate with children as agreed - Restraining Orders

Family Law Act 1975 (Cth)

APPLICANT: Ms Andrews

FIRST RESPONDENT: Ms Grant

SECOND RESPONDENT: Mr Andrews

FILE NUMBER: HBC 430 of 2011

DATE DELIVERED: 22 August 2012

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 22 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Trezise

SOLICITOR FOR THE APPLICANT: M + K Dobson Mitchell Allport

COUNSEL FOR THE FIRST RESPONDENT: Mr Herd

SOLICITOR FOR THE FIRST RESPONDENT: Blissenden Lawyers

COUNSEL FOR THE SECOND RESPONDENT: No Appearance

SOLICITOR FOR THE SECOND RESPONDENT:

Orders

1. Orders be made in accordance with the minute of consent order initialled by me, signed by the applicant paternal grandmother and the second respondent mother and dated today’s date, an engrossed copy attached hereto and marked Exhibit “1”.

IT IS NOTED

1. These consent orders were made pursuant to an undefended hearing where the first respondent father did not attend.

IT IS ORDERED

UNTIL FURTHER ORDER

1. Ms Grant (“the mother”) have sole parental responsibility for D born … April 2007 (“the child”).

2. The child live with the mother.

3. The child spend time with the applicant paternal grandmother in accordance with these orders or as otherwise agreed in writing between the parties.

4. The child spend time and communicate with the father as agreed in writing by the mother, or as otherwise ordered by a court exercising jurisdiction under the Family Law Act 1975 (Cth).

5. These orders shall be interim orders for a period of three (3) calendar months from the date of these orders, after which they shall become final orders.

6. Pursuant to s 65DA(2) and s 62B, 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 Fact Sheet attached hereto and these particulars are included in these orders.

7. This matter be removed from the list of cases requiring determination.

8. All applications in a case be dismissed.

IT IS DIRECTED

1. All exhibits remain on the Court file.

2. A copy of the reasons for these orders be taken out and placed on the court file.

3. The solicitor for the respondent mother forward a sealed copy of these orders to the father, by ordinary pre-paid post at his last known address, within twenty one (21) days from the date of these orders and file an affidavit of such service within a further twenty one (21) days after the letter has been forwarded.

IT IS REQUESTED

1. The solicitor for the applicant paternal grandmother forward to my associate in electronic form the minute of orders in word format.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Andrews & Grant and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

Exhibit “1”

1. Until further Order, the child, D born … April 2007 (“the child”) will spend time with the Applicant Paternal Grandmother, Ms Andrews, as follows:

(a)every third weekend from 4.30 p.m. on Friday until 6.00 p.m. on Sunday, commencing on a date to be specified;

(b)for a period of seven (7) consecutive days/nights during the Summer school holiday period in each year;

(c)for a period of four (4) consecutive days/nights during the May/June school holiday period in each year;

(d)on Christmas Day from 3.00 p.m. until 7.00 p.m.;

(e)such further or other times as may be agreed between the Respondent Mother, Ms Grant, and the Applicant Paternal Grandmother.

1. The Applicant Paternal Grandmother will not:

(a)     bring the child into physical contact with the Respondent Father, Mr Andrews, while the child is in her care;

(b)remove the child from the State of Tasmania without the written agreement of the Respondent Mother.

1. In the event that the Applicant Paternal Grandmothers time with the child pursuant to Paragraph 3. of this Order occurs on a special occasion, including the child’s birthday, Easter Sunday and Mothers Day, the child will be returned to the Respondent Mother at 5.00 p.m. on the day prior to any such special occasion.

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 430 of 2011

Ms Andrews

Applicant

And

Ms Grant

First Respondent

And

Mr Andrews

Second Respondent

REASONS FOR JUDGMENT

1. D (“the child”) is aged about five and a half and is fortunate enough to have grandparents who are particularly interested in his wellbeing and upbringing.  This application has been brought by his paternal grandmother, Ms Andrews, to spend time with the child.  The mother appears today as represented by counsel and she filed a response to these proceedings on 18 July 2011 and, in that response, sought orders that the child live with her and orders that the child spend time with his paternal grandmother.  The orders that are being sought today by the paternal grandmother, which are supported by the mother, essentially reflect those matters which were put in orders last year.

2. The parties have been involved in the processes of the Court and Ms S, a family consultant, (“the family consultant”) prepared a report dated August 2011.  That report has been put in evidence. I do not intend to go through the report chapter and verse.  However, I have had regard to every part of it. 

3. In her response, as I have said, the mother sought orders that the child live with her, which is a reflection of the existing state of affairs, and that she have parental responsibility.  The mother, in her material, described a history of violence and controlling behaviour by the father.

4. The applicant paternal grandmother is loyal to her son, but has conceded that any time that the child spends with her ought to be subject to an order restraining her from bringing the child into contact with the father.  That seems to me to be appropriate, as if the child has time with his father; it ought to be by way of negotiation between parents or determined by a Court exercising jurisdiction under the Family Law Act 1975 (Cth).

5. The father, it seems, had signed terms of settlement similar to that as sought by the paternal grandmother and consented to by the mother, but has not engaged fully to put those into place.  During the course of the undefended hearing, I raised with counsel for the mother as to whether I ought to make at least interim orders with regard to parental responsibility and with regard to residence.  This is clearly something which the Family Consultant had turned her mind to in her report.  The Family Consultant observed that it’s not realistic to share parental responsibility and, as such, there is a need in terms of any time the father spends with the child to have further information from him about his criminal, domestic violence and drug history.  I agree with her in terms of that.

6. The father was involved in the Child Responsive Program and spoke to the Family Consultant by telephone.  When the matter first came before the Court on 6 July 2011, there was no appearance by the father.  There was an appearance on behalf of the paternal grandmother and the mother.  The matter came back before the Court on September 2011, and there was no appearance by the father at that time.  The matter came before the Court on 19 October 2011 and, at that time, the father appeared in person before the Registrar, albeit it looks like that may have been by telephone, and informed the Court that the matter had settled.  He also appeared before the Court, presumably by telephone again, on 23 November 2011 and on 14 December 2011.  There was no appearance by him when the matter came before the Court on 18 January 2012, nor on 20 June 2012, nor on 27 June 2012, nor on 18 July 2012 when the matter was adjourned to today for an undefended hearing.

7. I note that each of the parties was sent a letter on 31 July 2012 by the Registry Manager informing them that the matter was listed for an undefended hearing today.  I have had the father called three times outside the Court and there was no appearance by him.  I intend to deal with the primary parenting issues today, so that they can be put aside, but put the orders in a form so as to enable the father, if he wishes to, to come back to the Court at some later stage and argue those questions as he would in any event, as he was not here today. 

8. The mother was born in 1980 and is aged 32.  The father was born in 1980 and is aged 31.  To the Family Consultant, the father said he seeks equal time and proposes that the child fly to Queensland each second week, although that has not been the subject of a response by him.  The child has two siblings living at his home: his sister, B, who is 11; and a brother Y, who is 13.

9. The father has children of other relationships who live interstate.  The mother asserts that she has had an on and off relationship with the father and the father left the state after allegedly assaulting his then partner Ms J in 2010.  The mother describes the father as a very violent and does not believe he will change and talked about the violent assaults on her and her current partner.  She asserted that the father abused drugs and she had, and I quote, “never known him not to have been on drugs”.  The mother would be content for the child to spend time with the father provided it is safe.

10. The factors of course I need to consider are those set out under s 60CC of the Family Law Act 1975 (Cth) (“the Family Law Act”).  My task is to ensure that the child has his best interest met by making sure he has the benefit of both parents having meaningful involvement in his life, to the maximum extent which are consistent with his best interests, but also at the same time protecting the child from physical or psychological harm or being subjected to neglect, abuse or family violence.

11. In determining what is in the best interests of the child I am obliged to have regard to the factors under s 60CC of the Family Law Act both the primary considerations and the other considerations.  In terms of the other considerations the child is clearly, from the Family Report, settled with his mother and has expressed a close relationship with her.  The meeting with his paternal grandmother clearly went well, surprisingly well, to the extent that the mother has but in place arrangements notwithstanding that orders are not in place.

12. From the information before me the primary attachment figure for this child and the primary support is the mother.  These orders do not in any way impair or interfere with that relationship, in fact in many ways the orders that the mother seeks promotes that relationship.  The child has a good relationship with his grandparents, in particular the applicant.  It is not clear on the material what the nature of the relationship is between the father and the child.  It is clearly somewhat strained bearing in mind the separation of the father from the child for some time.  The father seems on the material before me to be focused on his needs rather than the needs of the child.

13. The mother has fulfilled her role in maintaining this child and has encouraged a relationship between the child and the paternal grandmother.  The orders that are sought do not involve any change for the child and do not close the door for the child to see the father; in fact it leaves the door open provided it is safe for that to occur.

14. There is no practical difficulty and expense in the paternal grandmother spending time with the child and there is no issue as to the mother’s capacity, although there were issues in the past which have been touched upon. 

15. There have been significant issues of family violence in this case which have been raised by the mother, fortunately not between the mother and paternal grandmother.  There is an issue as to the paternal grandmother’s view of her son, the father, in somewhat of a gilded light which perhaps does not reflect the reality.

16. The primary considerations are the benefits of the child having a meaningful relationship with both parents and the need to protect the child from physical and psychological harm or being subjected or exposed to abuse, neglect or family violence.  There is no issue that the paternal grandmother will bring the child into harms way provided that she complies with the order to keep the child away from the father.  The mother has adopted a strategy of keeping the child from the father’s abuse, although she says that from time to time the father cannot be constrained.

17. There is a real issue as to the risk to the child in the care of the father.  There is no doubt that there is a benefit to the child having a relationship with his mother, but it is not clear to me on the evidence at the present time whether he ought to have a relationship with his father.  That is a matter for the father to provide evidence about in due course.

18. I have had regard to the factors under s 60CC(4) and (4A). Having regard to those factors I am satisfied that the orders that are sought between the mother and the paternal grandmother ought to be made and I will make those orders.

19. In addition, it seems to me that for the stability of this child there needs to be orders that the mother have sole parental responsibility for the child and that the child should continue to live with the mother so that there is some legal basis upon which the current situation can continue.  I am conscious that the father may not have been fully aware of this aspect of the case.  Accordingly I will be making interim orders for a period of three months from today’s date and direct that a copy of these orders be forwarded to the father at his last know residential address by ordinary pre paid post.  It is open for the father in that three month period to come back and argue the issue of residence and parental responsibility between he and the mother.  In any event even if the three months passes it is open for the father to come along and argue what time, if any, he should spend with the child and what communication, if any, he should have with the child, provided that he goes through the normal alternative dispute resolution aspect that are applied under the legislation. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 22 August 2012.

Associate:     

Date:              22 August 2012