Brealey & Morten and Anor

[2009] FamCA 261

FAMILY COURT OF AUSTRALIA

BREALEY & MORTEN AND ANOR [2009] FamCA 261

FAMILY LAW – CHILDREN – Interim orders – Application by the maternal grandmother seeking that the two youngest children be returned to her care – Where the eldest child is under the guardianship of the Minister for Family Services and has been placed in the care of the maternal grandmother – Where the mother has been unable to provide appropriate care for the children – Where the children have spent little time with the father – Where the children have been in the full time care of the maternal grandmother since November 2008 – Where the father took the two younger children to live with him in New South Wales in February 2009 – Where the mother supports the children being cared for by the maternal grandmother – s 60CC factors considered – Children to be returned to South Australia to live with the maternal grandmother

FAMILY LAW – INJUNCTION – Maternal grandmother restrained from permitting the children to spend time with the mother other than in a public place in the presence of the maternal grandmother

FAMILY LAW – PRACTICE AND PROCEDURE – Transfer of proceedings to the Parramatta Registry refused

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Brealey

RESPONDENTS: Mr Morten & Ms Fisher

FILE NUMBER: ADC 677 of 2009

DATE DELIVERED: 27 March 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 27 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms M.G. Dickson

SOLICITOR FOR THE APPLICANT: Belperio Clark

COUNSEL FOR THE FIRST RESPONDENT: Ms Stokes

SOLICITOR FOR THE FIRST RESPONDENT: Jones Rolfe Rudd

Orders

UPON NOTING the Court is not permitting the transfer of the proceedings to the Parramatta Registry on the basis that the Court has ordered the return of the children to South Australia.

IT IS ORDERED THAT

1. The father hand over the children T born on … September 1995 and E born on … October 2000 to the maternal grandmother Ms Brealey on Friday 17 April 2009 at the home of the father at C, in the State of New South Wales.

2. During the period of the adjournment the children T and E reside with the maternal grandmother at her home at P, in the State of South Australia.

3. During the period of the adjournment the maternal grandmother is restrained and an injunction is granted restraining her from permitting the children T and E from spending time with the mother other than at a public place or hospital facility and always in the presence of the maternal grandmother.

4. If handover does not take place on the 17 April 2009 liberty is given to the maternal grandmother to urgently re-instate the request for a Recovery Order before an Officer of this Court.

5. The matter is adjourned to the 13 May 2009 at 9.15 am before the Honourable Justice Dawe.

6. The maternal grandmother is to have telephone communication with both children in the current care of the father twice a week before 8.00 pm (NSW time) on days to be arranged between the maternal grandmother and the father.

7. Leave is given to all parties to inspect and copy (if necessary) documents produced under subpoena from the NSW Police Force.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 677 of 2009

MS BREALEY

Applicant

And

MR MORTEN & MS FISHER

Respondents

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an interim application concerning the welfare of two children, T, who was born in September 1995 and therefore aged 13, and E, who was born in October 2000 and is therefore aged eight.  It also concerns the welfare of the eldest child S, who was born in February 1994 and is therefore aged 15.  I say "also involves that child" because I am told that S is under the guardianship of the Minister for Family Services and is therefore a child about whom this Court is unable to make an order due to the provisions of the State legislation interacting with the Commonwealth legislation.  S has been placed with the maternal grandmother under that arrangement and has been in the grandmother's care since 2005, and I understand that order is still current.

2. The proceedings were commenced by the maternal grandmother, Ms Brealey on 24 February 2009 in the Federal Magistrates Court.  On 3 March 2009 the file indicates both the grandmother and the father appeared represented and the mother appeared in person.  The matter was transferred to the Family Court of Australia.

3. The file already contains some 14 documents, including affidavits from the maternal grandmother, the mother and the father, as well as subpoenas which have been issued to various authorities, including South Australia Police, New South Wales Police and the Family and Community Services Department.  The New South Wales police department has responded.  Both the South Australia Police department and Families SA department requested further time.  Due to the volume of material they were unable to comply within the normal specified time.

4. The material before me in relation to the two children, T and E, has some matters which are in dispute, but some of the chronology appears not to be in dispute. The mother and father separated before E was born.  E was born in 2000.  The children have since been residing in South Australia, either with the mother or the grandmother.  They have spent very little time with the father, who has remained in New South Wales, has re-partnered and continued his employment in New South Wales.  He has apparently spent time with E for approximately an hour and a half on one occasion, and in November 2007 there was a visit for approximately a week. The father has also spent time with T in Easter 2006, when he spent a short period of time with E.

5. The history of the children's care, as set out in both affidavits, indicates that the mother has been unable to provide appropriate care for the children.  The role of caring for the children has, to a large extent, been undertaken, on an informal basis, by the grandmother attending to the mother's house on a regular occasion, usually each day, and attending to look after the children at other times.

6. The affidavit of the grandmother indicates that all three children have been in her care since November of 2008; that is, in her full-time care since that time.  Her affidavit indicates that from 2005 the three children have been spending each weekend from Friday after school until Sunday evening and during her annual holidays in her care.  The eldest child has been formally placed in her care by the Minister, pursuant to orders obtained in the Youth Court. 

7. The mother has filed an affidavit setting out her difficulties and indicating her support for her mother, the grandmother, remaining the primary carer for the children. 

8. I am unable, in this interim matter, to set out all of the history of the matters but I have taken those into account.

9. The significant factor in relation to the orders sought by the grandmother is the events which occurred in February of this year. I have before me the application of the grandmother for the immediate return of the two younger children to her care, and if that is not complied with, then she seeks a recovery order.  It is therefore necessary to consider seriously the events behind the action taken in February this year.

10. The affidavit of the grandmother, which is to a large extent not contested by the father, states that the incident occurred when there was an argument between T and the mother that resulted in an injury to the grandmother.  The children remained in the care of the grandmother, who reported the incident to Crisis Care and ensured that Families SA were aware of the relevant matters.  The grandmother kept in touch with the Department.  Her affidavit at paragraph 14 says:

    “On 8 February I rang her (meaning Ms [R] from the Department) once more and was advised that she was still investigating the situation and there was nothing else to report.  No further contact took place between us until 18 February 2009, when I once more rang her and asked what was happening.  She advised that the children's father was coming across from New South Wales in the next two weeks, to meet with the girls.  I was assured that I would have the opportunity to be involved in the decision‑making process with him and Families SA.”

11. Paragraph 15:

    “The next day I rang Ms [R], to tell her about the paediatrician appointment I had arranged for [E] that day, to follow up the symptoms of her slow developmental progress.  She then advised me that the girls' father had arrived from New South Wales that day and that she had escorted him to the children's school, where she had spoken to the children's teacher, and that he and his partner, [Ms K], were now driving back to their home in the rural area of [C], with the children.”

12. The grandmother then goes on to deal with the question of her response to that.  Also in the grandmother's affidavit material, including the second affidavit filed by the grandmother, is evidence from the grandmother that she has telephoned the children at the father's home on several occasions and has been informed, either by the children or the father's partner, that the father was not there and was away working as a farmer.

13. At the hearing before me this morning I inquired of counsel for the grandmother whether the children had indeed been taken directly from school to C a rural town in New South Wales without any of their personal belongings.  I was informed that that was indeed correct.  Counsel for the father informs the Court that the father, in his affidavit, indicates that he has purchased clothes for the children, enrolled them at school and encouraged them to participate in extra-curricular activities.

14. This is an interim application and, as such, I am bound by the provisions of Goode & Goode (2006) FLC 93-286, which requires the Court to give careful consideration to the provision of all of the factors contained in Part VII of the Family Law Act and in particular weigh up those matters to which it is directed in relation to the best interests of the children. Obviously section 60CA requires the Court to consider the best interests of the child as the paramount consideration.

15. The primary considerations to be taken into account are 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 or family violence. 

16. Obviously in this matter there is a difficulty with the distance involved and the mother's past behaviour, which seriously indicates a need to protect the children from harm that they may be exposed to if they were to be in the care of or come into contact with the mother in an unsupervised sense.

17. The additional considerations under section 60CC(3) are also significant, in particular, the nature of the relationship of the child with each of the child's parents and other persons, including any grandparent or other relative of the child.

18. In relation to the past relationships, it would appear that, on any interpretation of the facts, E did not have a meaningful relationship with her father prior to the events of 19 February this year, due to the fact that she had had little contact with him whatsoever in that period and that the relationship between the father and T could not be described as a close or meaningful relationship, due to the very limited amount of time he has spent with the children since the year 2000.

19. The evidence does however indicate that the children have had a close relationship with the grandmother since the children came to South Australia many years ago.

20. When considering the capacity of each of the child's parents and any other person to provide for the needs of the child, including their emotional and intellectual needs, the Court has only the indications of the past involvement of the mother, which has not been satisfactory, and of the grandmother, which it appears has been a significant factor in providing stability and protection for the children.  It is also significant that the Minister has such confidence in the capacity of the grandmother that he has placed, on a permanent basis, the eldest child, S, in her care for many years.

21. Indeed, notwithstanding the events of early this year, the Minister appears to have condoned S remaining in the care of the grandmother whilst the younger two children have been removed and placed in New South Wales; a factor which will need further investigation in due course.

22. In relation to the question of the attitude to the child and the responsibilities demonstrated by each of the child's parents, the factors before the Court indicate that the mother's attitude to her responsibilities is one of significant concern.  The father has not taken any steps to exercise his responsibilities as a father for many years, until approached by Families SA.

23. Another significant factor is the effect of the changes upon the children (in section 60CC(3)(d)) in relation to separation from either his or her parents, or any other child or other person, including any grandparent or other relative of the child, with whom he or she has been living.

24. The references to the grandparents in section 60CC(3) appear twice.  What is significant about subsection (d) is that it not only refers to the separation from the grandparent but also the separation from any other child.  In this instance we have T and E being separated from their sister, S, and from the grandmother.

25. There are other factors under section 60CC, such as family violence, which are of concern, particularly in relation to the past behaviour of the children's mother.

26. Weighing all of those factors up, and taking into account that the father has exercised some responsibility by travelling to South Australia at the behest of the Department, collecting the two children and returning to New South Wales with them, where they have been enrolled in school and extracurricular activities, and that there may well be some disruption encountered by the children in moving back again, I am still of the opinion that there are significant factors;  being the ongoing relationship between the grandmother and their sibling S, and the past history of the matter including the responsibilities exercised by the grandmother and the relationship established by the grandmother with the children, which would require the return of the children to South Australia.

27. That would be only on the basis that an order is made which would prevent the grandmother from allowing the children to be in the care of the mother or to be in contact or spend time with the mother, other than in the presence of a responsible person.

28. During the period of the adjournment, which I propose to make, I will also indicate that the mother should only spend time with the children in some public place in the presence of the grandmother, to avoid any further scenes occurring as have occurred in the past due to the mother's past inability to act in an appropriate manner.

29. In summary, taking into account the significant factors in Part VII of the Family Law Act, and at no stage discounting the significant role of the parents in this particular matter, I am satisfied that it is in the children's best interests that they be returned to the care of the grandmother. The grandmother has indicated that she is prepared to travel to New South Wales to collect the children and will be assisted in the costs of the travel by officers of the Department.

30. My understanding is that school holidays commence very soon in South Australia, with the approach of Easter, but I do not have New South Wales dates before me.  It would appear appropriate for handover to take place during the school holidays.  Maundy Thursday is 9 April.  I be propose that the children come back to South Australia in time to commence the school term on 27 April in South Australia and have some time to settle in.

31. If the subpoenaed material is not going to be available until sometime in May, then an adjournment date should allow the parties and their advisers to consider that material and file further documents if necessary.

32. I am not directing the transfer of the proceedings to the Parramatta Registry on the basis that I have ordered the return of the children here. Most factors concerning the past care of the children for many years have occurred in South Australia. The involvement of the Department in South Australia and the medical attention for the children has all been in South Australia.  I decline to order the transfer of the proceedings to Parramatta.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe 

Associate

Date:  7 April 2009