BLANDY & MUNROE

[2012] FamCA 84

FAMILY COURT OF AUSTRALIA

BLANDY & MUNROE [2012] FamCA 84

FAMILY LAW - CHILDREN – interim orders – application by the mother seeking the return of the child from the father – where the child has had no relationship with the father until recent times – where the mother disclosed that a number of drug-related charges have been laid against her – best interests – orders that the child be returned to the mother upon condition that both the mother and child remain residing with the maternal grandfather ­ further orders that the child spend time with the father.

FAMIILY LAW - COSTS – application by the mother seeking costs – just and equitable – where the Court held that it was not just and equitable for costs to be ordered in the circumstances – no order as to costs made.

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

APPLICANT: Ms Blandy

RESPONDENT: Mr Munroe

FILE NUMBER: TVC 36 of 2012

DATE DELIVERED: 23 January 2012

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Burr J

HEARING DATE: 23 January 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Knight

SOLICITOR FOR THE APPLICANT: Stevenson & McNamara

COUNSEL FOR THE RESPONDENT: Mr Bevan

SOLICITOR FOR THE RESPONDENT: Northern Beaches Legal

Orders

UPON NOTING that the child E born … July 1998 will be delivered up by the father to the maternal grandfather in Town A at Location 1 at 5.00 pm on Wednesday 24 January 2012
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 this Court.

2. The parties participate in a Child Inclusive Conference at 9.00 am on Wednesday 1 February 2012.

3. Pursuant to Section 68L of the Family Law Act 1975 as amended, E be independently represented and that Legal Aid Queensland be requested to arrange such representation.

4. E spend time with the father at all reasonable times as agreed between the parties PROVIDED THAT such time is not less than:-

   (a)each second weekend, commencing on Friday 3 February 2012, with collection and delivery to take place (on collection by the father) at the McDonald’s Restaurant at Town B at 6.00 pm on the Friday and with return (to the mother) on Sunday 5 February 2012 at 4.00 pm at the same place or if on a weekend which is followed by a pupil free day or public holiday, the return (to the mother) will occur at 4.00 pm on the Monday;

   (b)each school holiday period, including the Easter public holidays commencing at 6.00 pm on the Thursday prior to Good Friday and ending at 4.00 pm on the last Sunday of the holiday period, or if Monday is a pupil free day or a public holiday, the conclusion will be at 4.00 pm on the Monday prior to the recommencement of school;

   (c)by Skype communication each Monday, Wednesday and Saturday between the hours of 7.30 pm and 8.00 pm, with the father to call the mother’s number and the mother to provide E with a quiet unmonitored place for E to communicate with the father;

   (d)on E’s birthday as follows:-

   (i)     if on a weekday or school day, by Skype;

   (ii)    if on a weekend, for the whole of that weekend in accordance with paragraph 4(a) hereof.

5. The parties and their partners not criticise or denigrate the other party or the other party’s family in the presence of E or within E’s hearing.

6. The parties advise the other of any change of telephone number or residential address within twenty-four [24] hours of such change occurring.

7. The parties are restrained and an injunction is hereby granted restraining each of them from drinking above the Queensland legal driving limit or taking illicit drugs while E is in their care.

8. For a period of three [3] months from the date hereof each party, on not less than twelve [12] hours notice by the other party’s solicitor, shall undergo a supervised urine drug screen analysis at a pathology laboratory and authorise that pathology laboratory to provide the results of that analysis to the requesting party’s solicitor.

9. Neither party shall remove E from the State of Queensland without the consent of the other party.

10. E shall have his own bedroom when living with the mother.

11. The mother’s application for costs in relation to today’s proceedings is dismissed.

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

1. E live with the mother UPON CONDITION that:-

   (a)the mother and E remain in residence with the maternal grandfather at his premises, with liberty to the mother to apply on short notice to relist the matter for hearing in the event that she wishes to secure alternative accommodation;

   (b)the mother not resume residence with Mr M.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Blandy & Munroe 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 36  of 2012

Ms Blandy

Applicant mother

And

Mr Munroe

Respondent father

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me today an Initiating Application filed in these proceedings on 13 January 2012 by the mother of the child E born in July 1998 and who is hence 13 years of age.  In that application the mother seeks by way of interim order, among other things, the return of E to her care and failing the delivery up, then a recovery order to secure E’s return to her.

2. The matter is unusual in a number of respects in that E did not have a relationship with his father for many, many years.  The situation is that the father, for reasons of his own, had no contact with E from 1999, shortly after his birth, until quite recently.  The father’s reintroduction into E’s life occurred as a result of E wanting to know more about his father and in fact wanting to know his father.  To her credit, despite all of those years that had passed and the fact that she had attended to E’s upbringing solely and without assistance from the father, the mother took various steps to locate the father.  That resulted in a gradual reintroduction of E to his father such that from July 2011, E and his father began to spend a few periods of time together.  That then ultimately concluded in the mother agreeing to the father and E spending a period of time together over the Christmas period.  However, at the end of that period of time, the father declined to return E to the mother’s care and that prompted her application to the Court.

3. The father indicated that the reasons why he did not return E to his mother were varied but included:-

   (a)a desire by E to remain living with him; and

   (b) his concerns about the mother’s drug lifestyle, including her residence with a Mr M who he was concerned, on reports from E at least, was also heavily involved in the drug trade. 

4. It is not to the mother’s credit that she failed to disclose these matters in her affidavit filed with her Initiating Application and it was only after the father filed his Response and his responding affidavit that the mother, in a subsequent affidavit filed by her, disclosed a quite serious connection with drugs and the fact that a number of charges have been laid against her, all being drug-related.  In fact the mother acknowledges in that affidavit that she does need, in the vernacular, “to get her act together” and that she is now undertaking some counselling to assist her with her addiction.  It is essential that she do so if she expects to have a full and satisfying ongoing relationship with her son E. 

5. I have though today ordered that the father immediately return E to the mother’s care as his actions, whilst he may have thought they were properly motivated, were inappropriate in the circumstances.  The Court does not condone actions on the part of parents in the nature of retention or abduction of children.  It is not for them to take the law into their own hands but to seek the facilities of the law which are readily available to them.  After such an extensive period in the mother’s care, there will be a number of factors that the mother could raise which would support her application that E live with her.  However, if the father’s case could be made out that there are some serious dangers facing E through the mother’s drug lifestyle and her poor choice of partners, then there may well be a very different parenting regime that this Court puts in place.

6. However, those decisions need to be made with a cool head and on the basis of all proper information that could be made available to the Court.  For those reasons it is my intention to order E’s return to his mother but to also shore up E’s position by making orders that protect him from the mother’s poor choice of partners and to protect him further by remaining under the watchful eye of his maternal grandfather.

7. I also intend to appoint an Independent Children’s Lawyer to represent E’s interests as distinct from his parents’ interests and order that the parties attend a Child-Inclusive Conference to try and explore relevant matters in relation to E’s care and to protect E’s best interests, as indeed this Court is obliged to do pursuant to Section 60CA of the Act. 

8. In arriving at a decision as to what might represent E’s best interests the Court is directed to Section 60CC of the Act.  I will not articulate reasons in relation to each of the subsections of Section 60CC but suffice to say I have had regard to each of the relevant provisions set out thereunder.  The two primary considerations loom large in the determination of these proceedings, the first being the need to consider the benefit to E of having a meaningful relationship with both of his parents.  Whilst he has really had only one parent for most of his life, I am satisfied that the father now proposes to take a more fulsome role in E’s life and that will then afford to E the opportunity to have a meaningful relationship with both of his parents which can only be to his advantage.

9. However, the other primary consideration is the need to protect E from physical or psychological harm, from being subjected or exposed to abuse, neglect or family violence.  The mother’s drug lifestyle is a significant risk factor for E here but equally a unilateral removal of E from his longstanding care arrangements is a factor that needs to be handled gently also. 

10. There are a number of other additional considerations the Court is obliged to consider and one is any views expressed by E.  The father says that E wants to live with him.  He may well have told his father that.  The question of whether or not that is a view that E genuinely holds will need to be something explored by an independent Family Consultant in these proceedings, who will then report to the Court.  In this Court’s experience, it may well be that E would express an entirely different view to his mother if and when he is in his mother’s care and it is those conflicted views that the Court needs to resolve before relying upon them in making any orders.

11. The other factors will be factors that loom more large in the determination at a later stage, particularly the nature of the relationship E enjoys with each of his parents and any other persons, including grandparents, and more particularly, the willingness and the ability of each of E’s parents to facilitate and encourage a close and continuing relationship between E and the other parent and it is in that area where the Court’s scrutiny will be cast upon both parents.

12. Also looming large will be the likely effect of any changes upon E’s circumstances.  If the father’s application was successful then there will be quite significant changes in E’s life and they need to be carefully considered before they are approved by the Court.  There will also be the issue of the practical difficulty and expense of E spending time with and communicating with each of his parents given the significant distance between the parents.

13. There are issues of capacity in a parenting sense that arise and a number of other relevant factors.  However, for all of the reasons I have articulated, it is my view that for an interim period, until further information can be afforded to the Court, it is appropriate that E be returned to the care of his mother but in circumstances where he now maintains regular contact and spends regular time with his father.  In my view, it is also appropriate to protect E by making orders that ensure as much as is possible that the mother will make better lifestyle choices and will not expose E to the worst aspects of her choices in that regard.

14. The mother also today has made an application for costs of today’s hearing.  At first blush her application in that regard would have merit as her actions were prompted by the father’s unilateral action in withholding E from her care.  However, I am satisfied from the information provided by him that he did take some steps to try and do the right thing and follow the proper procedures in the action that he did.  I am satisfied that he did endeavour to seek legal advice at a time of the year when it is very difficult to get advice and to file proceedings.  I am also satisfied that he has proper issues of concern to raise for the Court’s consideration. 

15. I am satisfied that it is not appropriate to make an order for costs in those circumstances particularly in light of the fact that the mother did not disclose in her original affidavit filed with the Initiating Application the fact of the charges that have been laid against her, the nature of the charges that have been laid as against her former partner and the issues of her own addiction and attempts to overcome same.

I certify that the preceding fifteen (15) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 23 January 2012.

Associate: 

Date: