Baldock and Morrison and Anor

[2016] FCCA 742

FEDERAL CIRCUIT COURT OF AUSTRALIA

BALDOCK & MORRISON & ANOR [2016] FCCA 742

Catchwords:
FAMILY LAW – Interim arrangements for care of child aged ten years – mother terminally ill – applicant maternal grandmother seeks return of child to Adelaide area – child has limited relationship with father who lives in (omitted) region of Queensland – mother and father entered consent orders by means of which child placed in the care of the father – at the time child in care of maternal grandmother – father subsequently has removed child to (omitted) – mother wishes to relocate to Queensland – freedom of movement – nature of interim hearing – best interests.

Legislation:

Family Law Act 1975 (Cth), s.4; 60B; 60CC; 65C

Goode & Goode (2006) FLC 93-286

Applicant: MS BALDOCK

First Respondent: MS MORRISON

Second Respondent: MR MORRISON

File Number: ADC 581 of 2016

Judgment of: Judge Brown

Hearing date: 22 March 2016

Date of Last Submission: 22 March 2016

Delivered at: Adelaide

Delivered on: 22 March 2016

REPRESENTATION

Counsel for the Applicant: Ms Bosko

Solicitors for the Applicant: All Family Law

Counsel for the First Respondent: Ms Dansie

Solicitors for the First Respondent: Duncan Basheer Hannon

Counsel for the Second Respondent: Ms Kummerfeld

Solicitors for the Second Respondent: Bell Dixon Butler

ORDERS

1. Further consideration of the matter is adjourned to 5 April 2016 at 9:30am for directions NOTING if Ms Morrison is in (omitted) the appropriate forum will be the Brisbane Registry of the court for allocation to the Hervey Bay circuit subject to the direction of the responsible Judge for that circuit, Judge Coates.

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

1. The child X born (omitted) 2005 live with the mother and pending the mother’s arrival in (omitted) Queensland she live with the paternal aunt, Ms D.

2. The child spend time with the father at times to be agreed between the mother and father.

3. The child spend time with the maternal grandmother at times to be agreed between the mother and father and failing agreement to be in the Queensland mid-year school holidays with the time to take place in the (omitted) area.

4. Subject to the mother relocating to Queensland, pursuant to Section 68L(2) of the Family Law Act 1975, the child X born (omitted) 2005 be independently represented and that Legal Aid Queensland be requested to arrange such representation.  That the Independent Children’s Lawyer be at liberty to peruse the Court file and obtain such copies as are required.  That each party comply with any lawful direction of the Independent Children’s Lawyer in relation to the preparation of any Report.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 581 of 2016

MS BALDOCK

Applicant

And

MS MORRISON

First Respondent

MR MORRISON

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. X is a vulnerable little girl, aged 10 years of age.  She was born on (omitted) 2005.  This judgment is concerned with provisional arrangements for her care, until more information is to hand and when it is decided where the case should finally be heard.

2. The case comes into court against a background of great urgency and controversy, chiefly arising because X’s mother, Ms Morrison, is seriously ill.  X, herself, has been taken from South Australia, where she has lived since at least 2007, to the (omitted) area of Queensland.

3. The applicant in the case is Ms Baldock, who is X’s maternal grandmother.  She lives in (omitted) on the southern end of the (omitted), outside of Adelaide.  The respondents in the case, at present, are X’s parents, Ms Morrison and her former husband, Mr Morrison.

4. For reasons which will become clear, this is a very sad case.  X’s mother is terminally ill and the relationship between Ms Baldock and Ms Morrison is very strained.  Given the circumstances, it may be impossible for that relationship to be repaired.  This situation cannot be helpful for X, herself, who is most probably feeling very scared at present because she is far away from her mother, whom she knows to be very sick indeed.

5. I am not sure exactly where Ms Morrison is living, at present.  Previously she lived in (omitted) in the (omitted) suburbs of Adelaide.  In an affidavit she filed on 10 March 2016, she gives details of why and how she has been diagnosed with her grievous illness. 

6. She was diagnosed, with stage four bowel cancer, in November of 2015.  She has been an inpatient, at the (omitted) Hospital, also in the (omitted) suburbs of Adelaide, in December 2015 and in January and February of 2016.  She has also had numerous out-patient medical appointments at the hospital, until recently.

7. Mr Morrison, X’s father, lives at (omitted), which I believe is about 10 kilometres outside of (omitted).  He is a (occupation omitted).  He and Ms Morrison married on (omitted) 2002, but separated in mid-2006.  At the time, the family, including X, lived in Darwin.  In 2007, Mr Morrison moved to (omitted), where his family is from.  Ms Morrison moved to South Australia around about the same time.

8. In 2006, consent orders were made between Mr and Ms Morrison, in the Family Court at Darwin.  Pursuant to those orders, the parents of X agreed that they would have equal shared parental responsibility for X, but that she would live with her mother and spend time, as agreed, with her father.

9. On 15 February 2016, Ms Morrison and Mr Morrison applied for consent orders to be made, in respect of X, at the Hervey Bay Magistrates Court.  At the time, Mr Morrison gave his solicitor’s address, in (omitted) as his contact address, whilst Ms Morrison gave an address in (omitted) as her contact address.

10. In the application, Mr Morrison and Ms Morrison indicated there were no court proceedings on foot in respect of X and this is undoubtedly the case.  On page 4 of the application for consent orders, in response to a question:

    Are you seeking a parenting order that provides for the child’s parents to spend time with the child?

    This answer was given:

    The mother intends to move from Adelaide to (omitted) to establish the child in the father’s care, prior to the mother’s terminal health condition manifesting.

11. Orders were made quickly, by the Hervey Bay Magistrates Court, on the following day, 16 February 2016.  Pursuant to these orders it was ordered that X live with her father and spend time with the mother, as agreed between the parents. 

12. It was also agreed that the parents should have equal shared parental responsibility for major long‑term decisions in respect of X, relating to her education, health and so on and so forth.  The parties also agreed that they would consult with one another about other issues to do with X but that Ms Morrison would be responsible for daily welfare arrangements for X, whilst she was in her care.

13. Ms Baldock commenced these proceedings on 23 February 2016.  She asked that her application be listed urgently.  Her request was acceded to and the case was initially fixed for 3 March 2016.  It is the applicant grandmother’s position that, on an interim or provisional basis, X should live with her and she should have sole parental responsibility for X.  It is implicit in Ms Baldock’s case that X should live in South Australia. 

14. On that basis, Ms Baldock sought what is called a recovery order, in respect of X.  A recovery order is a significant order for a court to make.  In effect, it is a direction, issued to police, that they are to remove a child from a person and deliver the child up to another person.  Having given that brief summary, of what a recover order is, it is clear that it is an extreme intervention which should only be used sparingly because of the potential it has to cause emotional upset for a child.

15. As will become clear, the reason for urgency, from the grandmother’s perspective, and why she asserted that there was a need for a recovery order to be made, was that X had left South Australia and had gone to live in (omitted), without any reference to her, after she assets X had come into her care, with Ms Morrison’s acquiescence, because of her ill health.  The circumstances surrounding this development are controversial, from the perspective of each of the persons concerned in the proceedings.

16. In her affidavit, in support of her application, Ms Baldock deposed that she had a close relationship, indeed, with X and had spent time with X during school holidays and at other times.  However, it is implicit in Ms Baldock’s affidavit that she conceded that X had been mainly cared for by her mother for the vast majority of X’s life. 

17. However, Ms Baldock was critical of her daughter’s care of X, up to this stage.  She characterised Ms Morrison as a poor and neglectful parent, who changed her address regularly and had suffered a period of being without a home for a period of time.  It was Ms Baldock’s case that she had made many reports to the Child Abuse Hotline, about X’s care, but these had not been actioned by the relevant authorities. 

18. It was also Ms Baldock’s position that Mr Morrison did not have a close relationship with X.  She alleged that he had seen X on only about two occasions, in the past eight years or so.  She also characterised Mr Morrison as a violent person, who had been violent towards Ms Morrison in the past.  In support of this assertion, she deposed that there had been a domestic violence order granted in the past.  Clearly, Ms Baldock, in her affidavit, has a poor view of both her daughter and Mr Morrison. 

19. I should point out that though Ms Morrison and Mr Morrison have been separated for a very significant period of time, they remain married.  Although, it appears to be the case that each has become involved with other persons in the period since.

20. It was Ms Baldock’s evidence that she and X had taken a holiday together during the recent long school vacation.  During that holiday they had gone to visit Ms Morrison’s home in (omitted), which is in the (omitted) suburbs of Adelaide, some distance away from (omitted), where Ms Baldock lives. 

21. It is Ms Baldock’s evidence that she had not been in the household previously and when she did enter it, with X, she found that it was unsanitary and unsuitable for a child of X’s age.  She further asserted that she discovered that X’s bedding was dirty and, indeed, bug ridden and was not appropriate, for obvious reasons, for a child of X’s age.

22. At this stage, it was Ms Baldock’s position that she took X into her care, with Ms Morrison’s consent.  The mother does not agree that she agreed to this arrangement.  Given the nature of these proceedings, that is an issue of controversy, which I cannot resolve at this stage. 

23. In any event, it is clear that at the start of the 2016 school year Ms Baldock enrolled X at the (omitted) Primary School.  At this stage, it must be the case that Ms Morrison was very ill, indeed.  She had been an impatient at the (omitted) Hospital and had undergone extensive abdominal surgery.  So this was, for obvious reasons, a tense and difficult time for all concerned, including X.

24. For reasons which I will come to in a moment, it is also clear that Ms Baldock and Ms Morrison do not have a particularly close relationship with one another, and have not for a fairly significant period of time.  It is however Ms Baldock’s evidence that she has always been there for her daughter and X.

25. At any rate, after 13 January 2016, which is when X came into Ms Baldock’s care, both grandmother and mother consulted the police closest to their home – the grandmother at (omitted), the mother at (omitted).  That tends to suggest that no clear agreement was reached between the parties, regarding X’s ongoing care, and, given the circumstances, that, perhaps, is not unsurprising.

26. Ms Baldock is 69 years of age.  She lives alone in a large and comfortable home in (omitted).  Her other daughter, who is Ms Morrison’s twin, lives a fairly short distance away from her, in (omitted).  Her name is Ms P and she, with her partner, cares for two children, who are eight and six.

27. It is Ms Baldock’s position that she arranged for X to have some counselling, from a lady called Ms K.  It is Ms Baldock’s position that this counselling was both appropriate, given Ms Morrison’s situation and was arranged with Ms Morrison’s consent.

28. There is a great deal of dispute about the next significant event, which brings the parties to this point.  On 22 February 2016, the mother and father attended at the (omitted) school, with the consent order which had been made at the Hervey Bay Magistrates Court a few days beforehand. 

29. They were accompanied by Ms D, who is Mr Morrison’s sister and so X’s paternal aunt.  She also lives in (omitted).  They spoke with the principal of the school and produced the consent order to him.  Ms Baldock was called to the school, ostensibly to say goodbye to X and, ultimately, the child left in the care of her parents and Ms D. 

30. The parties disagree as to X’s state of mind, at the time.  From the grandmother’s point of view, she was extremely distressed and was very opposed to leaving.  The mother and father have a different view and assert X was happy to leave with them.

31. Anyway, that was the background to this application being listed urgently, on 3 March.  At that stage, neither the father nor the mother had filed any answering material.  It was clear to me that the proceedings were replete with emotion and needed to be heard urgently.

32. Accordingly, the proceedings were adjourned until 18 March, which was last Friday.  At that stage, I had affidavit material from both Mr Morrison and Ms Morrison.  In addition, I had an application, which was filed on behalf of Ms D and Mr D.  They now seek to intervene in the proceedings.

33. It is the mother’s evidence and position that the grandmother’s application should be dismissed and the proceedings, whatever is left of them, be transferred either to the (omitted) circuit or the Brisbane Registry of the court.  It is Ms Morrison’s position that she asked her mother for some help, temporarily only, whilst she was hospitalised and that the grandmother has retained X against her (the mother’s) wishes.

34. In her affidavit, filed on 10 March 2016, Ms Morrison indicates she was diagnosed recently, in November of 2015, and when she was told of the diagnosis, and its implications for her, she immediately touched base with her husband, Mr Morrison, and his sister, Ms D, and started to discuss future arrangements for X’s care.

35. It is her position that she made arrangements for X to live with her paternal aunt, Ms D, so that she would be reintroduced to her father, and, thereafter, he would be in a position to take up her care when she succumbs to her illness.  That was the rationale for the orders being sought in the Hervey Bay Magistrates court in February. 

36. As I say, she refutes any suggestion that X was distressed by what occurred at the (omitted) School.  She says that X, Ms D and Mr Morrison all flew back to Queensland and X was a happy child and has settled in well with Mr D and Ms D, at their home in Queensland.

37. Ms Morrison concedes that X has only spent a few occasions in the care of her father, over the past five years or so, but she would like the two to have a closer relationship.  It is Ms Morrison’s evidence that X has a close relationship with her aunty, Ms D, and was keen to go and live with her in Queensland. 

38. She denies that there was anything improper about X’s bedding and denies that there were any bugs in the sheets and blankets.  She concedes that her house was not all that tidy, but explains that by reason of her illness and asserts any suggestion, made by Ms Baldock, that the house was unsanitary is an exaggeration. 

39. She denies that there has ever been any welfare involvement in her and X’s life.  She concedes that she has spent significant period of times in hospital since her diagnosis and had a major operation on 1 December 2015.  The cancer is in her liver and adrenal glands and the prognosis is not good.  But at this stage, I have not been provided with any extensive medical evidence in respect of her condition. 

40. Yesterday I was provided with a letter from Dr R, who is a colorectal surgeon, who I believe performed the surgery on Ms Morrison, but I may be wrong about that.   I will return to that letter shortly.

41. Anyway, it is Ms Morrison’s position that she wants to travel to (omitted), as quickly as she can, and spend as much time as she can with X thereafter.  She cannot fly, at present, and will have to drive to Queensland. 

42. Dr R has indicated that he believes that there are no – and this is his expressions – immediate medical impediments to Ms Morrison moving and travelling to Queensland.  However, he is mindful that it is a long trip, by road, and he recommends that Ms Morrison have a companion and take the drive in short stretches, with adequate rest.  The doctor opines that Ms Morrison is very unwell and there may be – and this, again, is the doctor’s phraseology – significant impediments and changes to her health in relatively short periods of time, which cannot be predicted. 

43. The father has outlined his position, in an affidavit filed on 15 March.  He characterises Ms Morrison as a good mother, from his knowledge of her.  He concedes, also, that he has not spent as much time with X as he would like, but that he asserts that X is fully aware that he is her dad and loves him because of that.  He denies being a violent person and denies that there is any intervention order or has been any intervention order against him. 

44. Mr Morrison further deposes that X has been enrolled at the (omitted) State School on 28 February 2016, where she is grade 5.  He has arranged counselling for her.  It is his evidence that X has settled in well with his sister, Ms D, and is doing as well as can be expected.  He concedes he had some problems with alcohol in the past, but they are well behind him now.

45. Mr D and Ms D have not been named as parties to these proceedings by Ms Baldock.  On 15 March their solicitor filed an application in the case, pursuant to which they seek to be joined as parties to these proceedings.  The basis of this is that X is living in their home and they are in loco parentis, so far as she is concerned.  Ms D is an (occupation omitted) by occupation.  She is 53 years of age.  Mr D has a (omitted) business.  He is 55 years of age.

46. Ms Kummerfeld, in her submissions, described Mr D and Ms D as honest brokers, who are involved in the case out of considerations of decency, rather than any ulterior motives.  Ms D says that while X has been in her care she is happy, sleeping well and is going to school regularly.  She also deposes that X has been introduced to children of her age and is socialising appropriately and well with them.  It is her position that she and her husband will nurse Ms Morrison until her passing because of the affection and love they have for her.

47. The grandmother has filed a further affidavit.  She alludes, in that affidavit, to the fact that she and her daughter, Ms Morrison, have had a troubled relationship since Ms Baldock separated from Ms Morrison’s father in controversial circumstances.  Ms Baldock says that she and Ms Morrison have always had a strained relationship, but Ms Baldock has always wanted to help her and I have no reason to doubt that she cares very much about X’s wellbeing. 

48. It is further Ms Baldock’s position that she is gravely concerned that, at the present time, X is being cared for by people, from her perspective, who are not close to her and who hardly know her.  In these circumstances, she contends that X’s interests will be best served if she lives with someone whom she knows well, rather than new people.  She believes that she is the natural person to care for X in these very difficult circumstances.

1. So it is clear, I think from this summary of what brings the parties to this point, that this is a very sad and difficult case and, from my own perspective, it is regrettable that I have to determine it.  It is regrettable that people who are related by blood ties are in dispute with one another, against these very difficult and confronting circumstances.

The Legal Principles Applicable

1. I now turn to the legal principles, which I have to apply in the case.  The proceedings arise as an interim stage.  As a consequence, as all the parties will be aware, I have not had an opportunity to take any lengthy evidence from any of the persons who are involved in the case.  More significantly, there has not been time for a family report to be prepared.

2. In cases of this kind, family reports are invariably very important because the writer of these types of report is able to see the child concerned, interview the child and get some sort of perspective on what the child’s views are about what is happening to him or her and, importantly, see the child interacting with those who are important to him or her and then report back to the court as to the appropriate outcome for the child concerned.

3. It’s trite, but true, to point out that a picture is worth more than a thousand words, and, in this case, I have not seen X.  I have only read about her. In this case, it is clear that the parties concerned, particularly grandmother and daughter, have very different views about all manner of significant things, which have occurred recently.  I cannot resolve these issues at this stage.

4. It is frequently the case that the court is called upon to make difficult decisions in respect of the care of the child when the facts are bitterly disputed and where the parties concerned, for all sorts of reasons, are in a state of crisis.  As a consequence, it is very often difficult for the court to have a clear sense of what has actually occurred.

5. But, notwithstanding those evidentiary difficulties, it remains the court’s responsibility to do the best it can, with the evidence which is available to it, to put in place the orders, which it thinks will best serve the interests of the child concerned.

6. The manner in which the court makes arrangements for the care of a child is through the making of a parenting order.  A parenting order is what it suggests:  it is an order which allows the court to make an order for determining such things as where a child should live, who the child should spend time with and other arrangements for the child’s care. 

7. As a consequence of section 65C of the Family Law Act, there is no doubt that grandparents have standing to bring an application for a parenting order.  The section specifies that the grandparents of the child may apply to the court for a parenting order. 

8. This situation is emphasised by the objects and principles of Part 7 of the Family Law Act, which are contained in section 60B.  In particular, section 60B(2)(c) specifies that children have a right to spend time, on a regular basis, with and communicate, on a regular basis, with both their parents and other people who are significant to their care, welfare and development, such as grandparents and other relatives. 

9. It's Ms Baldock’s case that she is a person who is significant to X’s care, welfare and development, and I accept that this is the case.  The mother concedes that X has spent time with her grandmother, in the past, and I have no reason to think anything other than that Ms Baldock is motivated by her concern for X in bringing these proceedings.

10. Although the hearing at the interim stage takes a different form to that which occurs at the final hearing stage – the former is a truncated hearing, the latter is a process which entails a more detailed examination of evidence, including cross‑examination – the same principles apply at both stages.  Whatever I do at this stage, I must be satisfied that it is in X’s best interests.

11. How a child’s interest is to be best served is determined by reference to the matters set out in section 60CC.  In a case called Goode & Goode,[1] the Full Court of the Family Court has indicated that in a truncated interim hearing, such as this one, the court should endeavour to analyse the factual situation, focusing on what is agreed, whilst bearing in mind that it cannot make findings of fact about all manner of disputed things. 

    [1] Goode & Goode (2006) FLC 93-286

12. Rather, the court should focus on what is agreed or what appears to have been the situation in respect of prior care arrangements for the child concerned.  In this context, it should analyse what findings should be made in respect of the relevant section 60CC factors.

13. Section 60CC creates two classes of considerations, which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it:  primary considerations and a longer list of additional considerations.

14. There are two primary considerations which are set out in section 60CC(2)(a)(b), namely:

    ·The benefit to the child of having a meaningful relationship with both of the child’s parents, and

    ·The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect of family violence.

15. As a result of section 60CC(2)(a), the court is directed to give greater weight to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to or exposed to abuse, neglect of family violence.

16. Pursuant to rule 11.03 of the Federal Circuit Court Rules, a person can apply to be included as a party.  They can do that by filing an affidavit stating their interest and what orders they will seek if they are joined.  In this case, I am satisfied that Mr D and Ms D are people who are interested in these proceedings because of the fact, amongst other facts, that they are currently providing a significant level of care to X and have offered their home to X’s mother.

Consideration

1. I now turn to the matters in section 60CC, starting with the primary considerations.  I have to consider the benefit which is likely to come to X of having a meaningful relationship with both of her parents.  In this context, it is, I think, significant that the legislature, in delineating the most important considerations, emphasise the importance of parental relationships.  This flows from the objects and principles of the Act, contained in section 60B, which speak of the benefits that come to children of having their parents meaningfully involved in the lives of their children.

2. In this case, it is, I think, apparent that X’s most significant relationship, up to this stage, has been with her mother.  This, I think, must be the case because X has lived with her mother for a significant period of time.  I accept that she is also close to her grandmother, but it seems, to use the jargon, that Ms Morrison has been X’s primary carer.

3. Ms Morrison is very ill, indeed.  I am told again today, and I was told on Friday, that whatever is the outcome of these proceedings, Ms Morrison will be leaving South Australia on Good Friday and will be travelling to (omitted).  She hopes to accomplish the trip by Easter Sunday.  Whether that is achievable, I am not sure, given the concerns raised by her surgeon.

4. Anyway, as I say, it is likely to be the case that X is concerned about her mother, because she knows her mother is very ill, indeed.  In the circumstances, it seems, to me, that X needs to be with her mother, and given that the mother is intent on being in Queensland and X is already there, this can be most easily achieved if X remains where she currently is.

5. It is not my function to examine the bona fides of why Ms Morrison wishes to move to Queensland.  In this country, citizens have an inherent right to live how and where they choose and, for reasons which she has delineated in her affidavit, Ms Morrison has said she wants to live in Queensland.  These reasons do not appear to me to be capricious.  Rather they are Ms Morrison’s individual preference.

6. It is her evidence that, given her circumstances, she wishes X to build her bond with her father and, as I say, I am required to consider the benefits of X having a meaningful level of relationship with not one but both of her parents.  For sad reasons, it is likely to be important that, as the future unfolds, X has the most viable relationship possible with her father.

7. In the confronting circumstances of this matter, at first blush, it would seem to be the case that it would be beneficial to X that she maintains her level of relationship with her mother, and, given Ms Morrison’s intent, that can only be in Queensland.  It also seems to me that there are likely to be long term benefits to the child resuming her relationship with her father, as best that can be done, in these very difficult circumstances.

8. Pursuant to the applicable legislation, parents who share parental responsibility for a child are required to consult with one another about major long-term decisions, one of which is defined, in section 4 of the Act, as: a decision which involves a change to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.  The Act does not allude, specifically, to grandparent, in respect of such relocation issues.

9. One of the things about this case is that the parents of X have decided, consensually, that X will live in (omitted).  This will result in her living very much closer to her father than previously.  Accordingly, there is the obvious potential for her relationship with him to be enhanced and once Ms Morrison has arrived there for X’s maternal relationship to be maintained.  Accordingly, at this stage, I do not think that it would be in X’s best interest to live with her grandmother and be away from her mother. 

10. I do not believe that I have the authority to make an injunction restraining Ms Morrison from leaving the State of South Australia.  I can only make orders in respect of X.  It is, theoretically, open to me to make an order for X to live with the grandmother in South Australia, but, at this juncture, I do not think that that can be said to be in X’s best interests.  It will subject her to more, rather than less, disruption, at this difficult stage of her life.

11. Clearly, the last few months have been very disruptive for X indeed.  In these circumstances, I think either to compel Ms Morrison to live in a place where she does not want to be or to direct that the child move, again, into the care of her grandmother, would be extremely disruptive for the child concerned.

12. For the reasons I have provided – and I don’t know what the prognosis is for Ms Morrison – I wish her the best – it would seem to me in X’s best interest that she spends as much time as possible with her mother, and, in my view, it would be artificial for me to direct that that should occur by a mechanism which is opposed vehemently by Ms Morrison and which arises at the behest of her mother (Ms Baldock), from whom she is estranged. 

13. No doubt what occurred in February could have been better managed, from everybody’s perspective, but I cannot, of course, undo that, at this stage.  As I have said, I have to give more weight to protective concerns, so far as X is concerned. 

14. The grandmother asserts that there will be physical, psychological harm occasioned to X, if she lives either with her mother or her father.  In this regard, the grandmother relies on what happened between the parents, many years ago now, in Darwin.  She has no recent evidence in regards to those issues.  In any event, the parents dispute those issues.

15. The fact remains that Ms Baldock has not seen fit to bring proceedings of this kind until the crisis occasioned by what occurred on 22 February.  In my view, a commensurate response to the protective concerns raised by the grandmother is if, in the short term, Ms Morrison lives with Mr D and Ms D. 

16. At this stage, I am not in the position to know what X’s views about the matter are.  That is one of the significant additional considerations I must consider.  In my view, the appropriate way to canvas X’s views is through a family report, which I do not have, at this stage.

17. I have to consider the nature of the relationship that the child has with each of her parents and with other persons, specifically grandparents.  As I say, I accept that X has a close relationship with her mother.  I also accept that she has a close relationship with her maternal grandmother.  She has, at best, a developing relationship with her father.  However, it cannot be the case that Mr Morrison is a total stranger to her. 

18. I am, of course, concerned that she does not know her father and Mr D and Ms D particularly well, in the sense that she has a deep intimacy and familiarity with them, arising from spending long periods of time with them.  However, this is not an usual case and there is a degree of crisis about it.  The most significant factor in this case is X’s relationship with her mother and the fact that the two, I think, need to be close and proximate to one another, at this stage of things.

19. I am not aware of Ms Baldock’s financial position.  It seems to me that it is open to her, at least in theoretical terms, to go to (omitted) to spend some time with X.  That would be helpful, I think, to X, but whether that can be arranged in the short to medium term I do not know. 

20. Mr Morrison and Mr D and Ms D are open to X spending some time in the mid-year school holidays.  Ms Morrison has deposed that her condition can be treated through chemotherapy and it is her hope that her life will be extended as long as possible.

21. At this stage, I am troubled as to whether it is necessary, in the longer term, to join Mr D and Ms D as parties to the proceedings.  As I understand their position, they want to provide as much stability for X, in the short term, but they are desirous of dropping out of doing that, as soon as is reasonably possible.  Their position, I think, is that they wish to fill any legal vacuum, which may arise because of X’s situation, and I can see the practicality of that.

22. Ms Morrison’s case is that she can be in Queensland in a relatively short period of time.  I hope that that is the case, but, at this stage, out of an abundance of caution, I propose to revisit the matter within a fortnight, just to make sure that Ms Morrison is safely in Queensland.

23. So the intention is that when the mother has moved – successfully, I hope – to Queensland that the proceedings will be transferred to the Brisbane Registry for transfer to the Harvey Bay Circuit.  In the interim I order that X live with Mr D and Ms D, until such time as Ms Morrison has arrived in (omitted).

24. However, out of an abundance of caution I will revisit the matter in a fortnight’s time to make sure Ms Morrison has completed the journey successfully.  Then the proceedings will be formally transferred to Queensland and, hopefully, an Independent Children’s Lawyer can be appointed, who will take whatever steps are necessary to investigate these matters further.  The grandmother can consider her position, perhaps in the light of other information which she receives in the short to medium term.

25. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Date:     6 April 2016