Bland and Cramer and Anor (No 2)

[2012] FamCA 639

FAMILY COURT OF AUSTRALIA

BLAND & CRAMER AND ANOR (NO. 2)  [2012] FamCA 639

FAMILY LAW – CHILDREN - Undefended hearing - Where the Second Respondent Mother was ordered at a callover to file material and informed that if she failed to do so, the matter would be heard undefended - Where the Mother was present at that callover hearing - Where the Mother has since failed to file any material - Where the Mother failed to attend the hearing today – Where it is clear the Mother is aware of Orders made to date and the Orders sought

Family Law Act 1975 (Cth)

APPLICANT: Ms Bland

1st RESPONDENT: Mr Cramer

2nd RESPONDENT: Ms Banksia

FILE NUMBER: TVC 64 of 2012

DATE DELIVERED: 6 August 2012

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Kent J

HEARING DATE: 6 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fellows

SOLICITOR FOR THE APPLICANT: Giudes & Elliott Solicitors

Orders

1. The child, C, born … May 2008 (“the child”), live with the Applicant paternal grandmother.

2. The Applicant paternal grandmother and the Respondent Father have equal shared parental responsibility for the child.

3. The Respondent Father spend time each week with the child as follows:

   (a)       Each week from after day care (approximately 5.00 pm) on Friday until 5.00 pm on Sunday;

   (b)       At such other times as the Applicant paternal grandmother and the Respondent Father agree.

4. The Respondent Father is restrained by injunction and an injunction is hereby granted restraining him from delivering the child into the care of the Respondent Mother.

5. The Respondent Mother is restrained by injunction and an injunction is hereby granted restraining her from spending time with the child and from taking the child into her care.

6. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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 to adjust to and comply with an Order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

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

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVC 64 of 2012

Ms Bland

Applicant

And

Mr Cramer and Ms Banksia  

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These are parenting proceedings concerning the child, C, born in May 2008 (“the child”), who has thus recently turned 4 years of age. By an Initiating Application filed on 19 January 2012, Ms Bland, the child’s paternal grandmother, filed the application in which she sought final parenting Orders with respect to the child. Under those Orders as sought, the Applicant sought sole parental responsibility and Orders as to the spending of time by the child with the parents on an interim basis as the Court deemed fit and also as expressed on a final basis.

2. The child’s parents are the Applicant’s son, Mr Cramer, born in 1982 (“the father”), and Ms Banksia, born in 1990 (“the mother”).

3. On the interim hearing of the Initiating Application, his Honour Justice Burr made Orders on 23 January 2012 relevantly that the child  live with the Applicant, that the Applicant and the Respondent Father have equal shared parental responsibility for the child, for the child to spend time with the Father each week from after day care on Friday until 5.00 pm on Sunday and at other times as agreed, and injunctions were made restraining the Father from delivering the child into the care of the Respondent Mother, and there was an injunction restraining the Respondent Mother from spending time with the child and from taking the child into her care.

4. His Honour delivered reasons in respect of the interim hearing and relevantly for present purposes, his Honour was satisfied that the Respondent Mother had notice of the proceedings but had chosen not to participate in them. Nevertheless, his Honour made Orders for the service of the interim Orders upon the Mother and likewise, when the matter came before the Court on 21 March 2012, his Honour Justice Cronin extended the interim Orders made by his Honour Justice Burr and made further directions as to the service of the material upon the Mother.

5. When the matter was called over before me on 16 July 2012, the Mother then appeared and was plainly made aware on that date that this matter would proceed today on an undefended basis in the event that she chose not to file any material. In the result, the Mother has not filed any further material and has not appeared in Court today.

6. I am satisfied not only by reason of her appearance at the callover but also by reference to the material filed in support of the application, that the Mother is well aware of the proceedings, and not just that there are parenting proceedings on foot but the nature of the Orders that have been made to date and the Orders that are sought today.

7. In the result, both the Applicant paternal grandmother and the Father are in agreement that the Orders as made by his Honour Justice Burr on an interim basis ought be made as final Orders.

8. Part VII of the Family Law Act 1975 (Cth) (“the Act”) (sections 60A to 70Q) provides the statutory framework in which the Court exercises its power to make parenting orders.

9. Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1)) and the principles which underlie those objects (s 60B(2)).

10. Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.

11. Section 60CC of the Act identifies the “primary considerations” (s 60CC(2)) and the “additional considerations” (s 60CC(3)) the Court must consider in determining what is in the child’s best interests. That requirement is supplemented by the further requirement for the Court to consider the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent in the particular respects identified in s 60CC(4).

12. Section 65D of the Act provides the source of the Court’s power to make a “parenting order” as defined in s 64B.

13. Section 65D(1) expressly provides that the power to make a parenting order is subject to, inter alia, s 61DA of the Act. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2) and moreover, that presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. (s 61DA(4) of the Act).

14. The history relevant to this matter and the statutory considerations just discussed includes that, shortly after the child’s birth in Brisbane, her parents came to live in Townsville, where the Applicant resides with her husband, Mr Bland. ….

15. It would seem that the child’s short life has been characterised by her witnessing of domestic violence in one form or another, which has been produced by, it would seem, the Mother’s capacity to make choices of partners that might be said to be less than inspired choices.

16. It is the case that the relationship between the present Applicant paternal grandmother and her son, the Respondent Father, has not always been a happy one. I note the material includes a Protection Order which was made pursuant to the Domestic and Family Violence Protection Act 1989 (Qld) on 6 April 2011, and that Order remains extant until 5 April 2013.

17. However, it would seem that, currently and for some time, the relationship between the Applicant and her son, the Father, has been a better relationship than the circumstances giving rise to that Order would suggest. Nevertheless, the fact that that Order exists fortifies me in the conclusion that it is in the child’s interests that her parental responsibility be shared as between the Father and the present Applicant.

18. It would seem that, from the time soon after the child’s birth, her paternal grandmother and her partner, Mr Bland, have played a significant part in the child’s life and have provided significant support to the child’s parents in terms of their care and support of the child in difficult circumstances. It is the fact that the child’s living arrangements have been less than satisfactory for a child as young as she is in terms of the number of movements of her principal place of abode. That has been produced, in part, by the Mother’s entering into relationships, for example, with her former partner in Newcastle, and the child living for a time in Newcastle but then returning to Townsville.

19. Notwithstanding the clear supportive role that the Applicant has played in the child’s life, at times, the Mother has caused unreasonable difficulty in the Applicant spending time with the child. It would seem that past history is characterised by the Mother being happy enough for the Applicant to take a primary role with the child when it suited the Mother, but at other times, making things difficult in terms of the child’s relationship with the Applicant. That resonates obviously with numerous of the considerations expressed in s 60CC of the Act in terms of determining parenting Orders that are in the child’s best interests.

20. At the age of four years, obviously enough the child is too young to express views to which the Court can attach any weight (s 60CC(1)(a)). It is clear that the Applicant has a close and loving relationship with the child within the meaning of s 60CC(3)(b) and within the meaning of s 60CC(3)(d), I am satisfied that it is in the child’s best interests that the turmoil in her living circumstances be quelled by a continuation of her residing with the present Applicant. I am satisfied that any practical difficulties and expenses of the child spending time with the Father are resolvable as between the Applicant and the Father, and whether in the future the child is to spend time with the Mother will be a matter upon which the Father and the Applicant will determine pursuant to their rights of parental responsibility (s 60CC(3)(e)).

21. I am concerned about, on all the evidence that is provided, the capacity of the Mother both historically and currently, to provide for the child’s needs and to focus upon the child’s best interests (s 60CC(3)(f)). I am satisfied that the current Applicant, assisted by her partner, Mr Bland, plainly has the capacity to provide for the child’s needs, including her physical, emotional and intellectual needs. As noted, Mr Bland is a public servant and I note that the Applicant is a public servant. She is 55 years of age, having been born in 1956.

22. I am satisfied that the Applicant demonstrates a considered approach in terms of her attitude to the child and has assumed the responsibilities of parenting the child where there has been a shortfall in that respect demonstrated by each of the child’s parents.

23. Most importantly, I am satisfied on the evidence before me that there is a significant risk of the child being further exposed to family violence within the meaning of that term in the Act, should she be living with the Mother. I am satisfied on the evidence before me that the primary consideration expressed in s 60CC(2)(b), is enlivened on the evidence, that is, that there is a need to protect the child from exposure to potential physical and psychological harm from being exposed to abuse, neglect or family violence which, I find, has been her experience historically in the care of her mother from time to time and the relevant presumption is displaced in the child’s best interests (s 61DA(2)).

24. I am satisfied that it is in the child’s interests to have a meaningful relationship with the Father, and on all the evidence, I am satisfied that the paternal grandmother is in a position and has acted to protect the child and indeed herself in circumstances where the Father’s conduct may historically have left something to be desired. I have referred earlier to the Protection Order, and that is a useful example.

25. In all the circumstances, I am therefore satisfied that, overall, it is in the child’s best interests within the meaning of s 60CA for Orders to be made by way of final Orders in terms of the Orders as sought currently by the Applicant and by the Father, which mirror the interim Orders made by Justice Burr in relevant respects. I therefore make Orders in those terms as and by way of final Orders as set out at the commencement of these reasons.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 6 August 2012.

Associate:

Date:  7 August 2012