Bland & Banksia & Anor

[2012] FamCA 85

FAMILY COURT OF AUSTRALIA

BLAND & BANKSIA AND ANOR [2012] FamCA 85

FAMILY LAW - CHILDREN – interim orders – application by the paternal grandmother seeking orders that the child live with her and that she have sole parental responsibility – where the paternal grandmother alleges that the child has been witness to periods of serious family violence – where the paternal grandmother has cared for the child for extended periods of time – where the mother was not present at the hearing but the Court was satisfied of the mother’s knowledge of the hearing – best interests – orders that the child reside with the paternal grandmother – further orders that the paternal grandmother and father have equal shared parental responsibility for the child.

Family Law Act 1975 (Cth) ss 60CA & 60CC

APPLICANT: Ms Bland

1st RESPONDENT: Ms Banksia

2nd RESPONDENT: Mr Cramer

FILE NUMBER: TVC 64 of 2012

DATE DELIVERED: 23 January 2012

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

EX TEMPORE REASONS OF: Burr J

HEARING DATE: 23 January 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr J. Hopes
SOLICITOR FOR THE APPLICANT:	Giudes & Elliott Solicitors

COUNSEL FOR THE 1ST RESPONDENT:	No appearance
SOLICITOR FOR THE 1ST RESPONDENT:	No appearance

COUNSEL FOR THE 2ND RESPONDENT:	Ms C. Paul
SOLICITOR FOR THE 2ND RESPONDENT:	Duty Solicitor

Orders

UPON NOTING:-

(a)that personal service of the documents has not yet been effected upon the mother;

(b)that the affidavit of the bailiff Mr K filed 23 January 2012 indicates that the mother is fully aware of the general nature of the proceedings and the date and time of today’s hearing

IT IS ORDERED THAT:-

1. Further consideration of the proceedings be adjourned to 10.00 am on Monday 12 March 2012 before the Honourable Justice Cronin during the Townsville Judicial Sittings of the Court.

2. The legal representative(s) for the Applicant paternal grandmother take all such steps as are necessary and reasonable to effect service of the proceedings and a sealed copy of this Order upon the mother at the earliest opportunity.

AND IT IS FURTHER ORDERED, DURING THE PERIOD OF THE ADJOURNMENT, THAT:-

1. The child C born … May 2008 live with the Applicant paternal grandmother.

2. The Applicant paternal grandmother and the Respondent father have equal shared parental responsibility for C.

3. The Respondent father spend time with C 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 and an injunction is hereby granted restraining him from delivering C into the care of the Respondent mother.

1. The Respondent mother is restrained and an injunction is hereby granted restraining her from spending time with C and from taking C into her care.

IT IS NOTED that publication of this Ex tempore judgment by this Court under the pseudonym Bland & Banksia and Anor 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 paternal grandmother

And

Ms Banksia
Respondent mother

And

Mr Cramer
Respondent father

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me for determination today the Initiating Application of the paternal grandmother of the child C born in May 2008 and who is thus nearly 4 years of age, that Initiating Application having been filed urgently on 19 January 2012.  The paternal grandmother seeks orders that C live with her and that she have sole parental responsibility for her.  The father of the child is her son, Mr Cramer.  The second respondent, namely the applicant’s son, appears today and is represented by the Duty Lawyer, Ms Paul.  Agreement has been reached on an interim basis between the paternal grandmother and the father of C.  There is though no appearance by C’s mother today, who is the first respondent to the paternal grandmother’s application.  The matter has been called and there is no appearance by her.

2. I am satisfied that she is aware of the proceedings before the Court today from the matters contained in the affidavit of a bailiff, Mr K, handed to me this day, that affidavit having been sworn on 20 January 2012.  Mr K details the various efforts he has made to serve the documents upon the mother.  Those attempts have been unsuccessful.  However, I am satisfied from his affidavit that the mother is aware of the proceedings, is aware that the matter is listed before the Court today and is aware of the general tenor of the proceedings before the Court.

3. Mr K has spoken to the mother by telephone and I accept that he relayed to her the information generally as to what the application was about and what orders were being sought in the proceedings by the paternal grandmother.  The fact of the mother’s knowledge of the proceedings appears confirmed by the attendance of the mother at the child’s Child Care Centre shortly after the telephone conversation the bailiff had with her.  I am concerned that it was clearly the mother’s intention to remove C from the Child Care Centre.  Alert to that possibility though, the paternal grandmother had ensured that C was not at the Child Care Centre that day.

4. These proceedings are unfortunate in a number of respects and certainly unfortunate for C.  There has been a chequered history of care for C over a lengthy period of time but particularly the last few years.  Final orders were made by consent as between the mother and the father on 2 December 2009 which resulted in orders that C live with the mother.  Thereafter the father and the mother attempted a number of reconciliations, each of which ultimately failed. 

5. One of those reconciliation attempts ended in regrettable circumstances and tensions clearly ran high through the early part of last year.  One very regrettable consequence was that the father assaulted his mother, the applicant paternal grandmother, in April 2011 and domestic violence proceedings were taken as a consequence and an order issued.

6. From March to May 2011 C lived with the father and during the latter stages of that period the paternal grandmother and her husband saw C regularly.  However, the paternal grandmother lists a number of concerns that she has for C’s welfare.  I will not iterate them in full, but they are clearly set out in paragraph 12 of her affidavit also filed on 19 January 2012.  In that affidavit she gives evidence as to a number of regressions in C’s development and some clear evidence of the fact that C has regrettably been witness to periods of serious family violence between the mother and her present partner, Mr B. 

7. It would seem that the mother and Mr B have been in and out of their relationship over a period of time, the hallmark of that relationship being significant family violence.  Regrettably, C has been caught up in that violence and there could be no question that she has been emotionally harmed by the experience.

8. The concerns that the paternal grandmother has for C are supported by, and indeed added to by, her husband who also filed an affidavit on 19 January 2012.  He sets out his concerns in paragraph 10 of his affidavit.  The paternal grandmother’s husband also sets out in paragraph 13 of his affidavit significant evidence about the regrettable experiences that C has had both during the stormy relationship shared between the mother and the father and the subsequent relationship her mother has had with Mr B. 

9. The mother clearly trusts the paternal grandmother to care adequately, appropriately and properly for C as on a number of occasions in the past she has voluntarily placed C in the paternal grandmother’s care, one of the most recent being on 23 October last year for a period of five weeks.  C has now been in the care of the paternal grandmother and her husband since 2 December 2011 when the mother voluntarily again relinquished C into the paternal grandmother’s care as a consequence of the severe violence that the mother was experiencing at the hands of Mr B.  The mother clearly feared for her safety and wellbeing at that time and to her credit looked to remove C from that violent environment by placing C in the care of the paternal grandmother.  It is now some three months in aggregate across that period of the latter part of last year that C has been in the care of the paternal grandmother. 

10. The paternal grandmother sets out in her affidavit the current arrangements that have been made for C and without articulating them, they are certainly entirely appropriate and adequate for C’s care and for her wellbeing.

11. Ultimately it would seem that the paternal grandmother’s application to this Court was prompted not just by the concerning history of the matter, but by a remark made by the mother to the paternal grandmother on 16 January this year when she said that she was going to remove C from the paternal grandmother’s care “for good”. 

12. The paternal grandmother and her husband raise a number of concerns about the father of C as well, but the father has this day acknowledged that there are appropriate care arrangements that can be made and which basically require C to live with the paternal grandmother.  He, though, will remain a regular feature of his daughter’s life through agreed periods of time that he will spend with her.

13. I have had regard to all of the relevant factors under Part VII of the Act but in particular to Section 60CA and Section 60CC of the Act.  Section 60CC requires the Court to have regard to two primary considerations and then a raft of additional considerations.  I have had regard to all of them.  However, given the agreement between the father and the paternal grandmother and the non-appearance of the mother in these proceedings, in my view it is unnecessary to provide detailed reasons and findings in relation to each of those subsections.  I believe though that the orders I intend to make will ensure as much as is possible in the difficult circumstances of this matter that C will be able to have a meaningful relationship with both of her parents.

14. I am satisfied that in circumstances where C would be safe, the paternal grandmother will ensure that C continues to enjoy a relationship with her mother.  Essentially though the orders that I make need to reflect the need to protect C from physical or psychological harm or from being exposed or subjected to abuse, neglect or family violence.  That factor looms large in these proceedings, certainly at the interim determination stages.

I certify that the preceding fourteen (14) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 23 January 2012.

Associate: 

Date: