Bussell and Sturgess and Anor

[2010] FamCA 709

FAMILY COURT OF AUSTRALIA

BUSSELL & STURGESS AND ANOR [2010] FamCA 709

FAMILY LAW – CHILDREN – What interim parenting orders should be imposed – Parental responsibility – With whom children live and spend time – Family violence – Paternal grandmother to have sole parental responsibility for the children – Children live with the paternal grandmother and spend time with the parents as agreed between the parties

Family Law Act 1975 (Cth)

APPLICANT: Mr Bussell

1st RESPONDENT: Ms Sturgess

2nd RESPONDENT: Ms Samms

INDEPENDENT CHILDREN’S LAWYER: Ms Costigan, Legal Aid NSW

FILE NUMBER: NCC 1033 of 2010

DATE DELIVERED: 26 July 2010

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 26 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE 1ST RESPONDENT: Not Applicable

SOLICITOR FOR THE 1ST RESPONDENT: Mr Steel, Hunter Community Legal Centre Inc

COUNSEL FOR THE 2ND RESPONDENT: Not Applicable

SOLICITOR FOR THE 2ND RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Costigan, Legal Aid NSW

Orders

1. The paternal grandmother is joined to the proceedings as the second respondent.

2. Copies of the Affidavit of Ms R, Family Consultant, annexing her Children and Parents Issue Assessment dated 22 July 2010 may be given to:

   a.The parties;

   b.The lawyers acting for the parties;

   c.The lawyers representing the children in the proceedings pursuant to order made under s 68L of the Family Law Act; and

   d.If a party is legally aided, to employees of the legal aid body providing financial assistance to the party, but only upon request from an employee of the legal aid body.

3. Except with the Court’s permission, no person is to release the report, or provide access to the report, to any person other than those mentioned in Order 2.

4. Pursuant to s 91B of the Family Law Act, the Director-General of the New South Wales Department of Human Services is invited to intervene in these proceedings and, in the event that the Director-General wishes to intervene, shall file and serve a Notice of Intervention within 28 days.

5. Each party shall forthwith inform the other, and keep each other informed, in writing of their respective current residential address, landline telephone number and mobile telephone number.

6. The second respondent paternal grandmother shall file and serve within seven days a Response setting out the final parenting orders that she proposes for the children.

7. The applicant father shall file and serve within seven days a Notice of Address for Service.

8. The matter is referred back to the Docket Registrar for further procedural orders.

PENDING FURTHER ORDER, IT IS FURTHER ORDERED THAT

1. Any former parenting orders relating to the following children are suspended:

   a.H, born … December 2001;

   b.C, born … February 2004; and

   c.M, born … July 2008.

2. Parental responsibility for the children is allocated to the second respondent paternal grandmother solely.

3. The children shall live with the second respondent paternal grandmother.

4. Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

NOTATIONS

A.The parties and the Independent Children’s Lawyer are likely to invite the Docket Registrar to consider:

a.The appointment of a single expert to assess the parties, the children and allegations of child abuse; and/or

b.The making of an order for the preparation of a Family Report pursuant to s 62G of the Family Law Act.

B.The absence of orders providing for the children to spend time and/or communicate with the parents is not intended to mean that they should not spend time and communicate with them.  The paucity of evidence precludes the Court from making an informed decision about those issues on an urgent basis and so those issues will be left to the parties to negotiate satisfactory arrangements.  In the absence of compromise, a party will need to file an Application in a Case with supporting affidavit evidence in accordance with the Family Law Rules.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1033  of 2010

MR BUSSELL

Applicant

And

MS STURGESS

First Respondent

And

MS SAMMS

Second Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern parenting orders for three children born to the applicant father and the respondent mother. 

2. Those children are as follows:

   a)H, born in December 2001;

   b)C, born in February 2004; and

   c)M, born in July 2008.

3. The parents separated in or about mid 2009 and the arrangements for the children have been in a state of flux ever since.  The eldest child H has lived with the paternal grandmother since 25 December 2009.  The second child C has lived with the paternal grandmother for the last couple of weeks.  The youngest child M still lives with the mother.

4. The mother has recently relocated from the Central Coast of New South Wales to the North Coast of New South Wales.  The father also intends relocation away from the Central Coast area.  No arrangements are in place for where the children are to live, nor how they are to spend time or communicate with other important persons in their lives.

5. The matter came before the Docket Registrar today and the family dynamics were so chaotic that the matter was listed before me on an urgent basis.

Proposals and Evidence

1. The proposal of the paternal grandmother is that contained within her Interim Initiating Application filed today, being 26 July 2010, seeking leave for her to intervene in the proceedings as a party and parenting orders dictating that the three children live with her and spend time with their parents as deemed fit by the Court.

2. An order was made by me granting leave for the paternal grandmother to intervene in the proceedings as a party as a preliminary step.

3. The parenting orders proposed by the paternal grandmother are endorsed by the Independent Children’s Lawyer.  The Independent Children’s Lawyer opposes any arrangement that would permit the removal of the eldest two children from their current placement with the paternal grandmother and their placement with the mother at her recently acquired residence on the North Coast.

4. The position jointly adopted by the paternal grandmother and the Independent Children’s Lawyer is broadly in line with the evidence of the Family Consultant contained within her affidavit sworn on 22 July 2010, which annexes her Children and Parents Issues Assessment.

5. For his part, the father is unable to articulate any parenting orders appropriate for the children at all.  Although the proceedings were initiated by him, he has appeared before the Court today self-represented and informed the Court that he is unable to make any submission about what should happen with the children.  The extent of the father’s submissions is that he is content for the children to live with the paternal grandmother if they are not to live with him.

6. The father seemed accepting of the reality that the children cannot be placed with him given that he is unable to identify to the Court where he intends to sleep tonight.  He has no regular established residence.

7. The mother is desirous of an order that all three children live with her, even though she accepts that the two eldest children presently live with the paternal grandmother and have been doing so for differing periods of time. Her proposal entails an assumption that the two eldest children will be removed from the household of the paternal grandmother and the social groups they have formed in that area so that they can be placed with her and live in the northern coast district. 

8. The mother has appeared today with the assistance of a solicitor but, having regard to the freshness of that solicitor’s instructions, no submission was able to be put to the Court about the parenting orders that should properly be made above and beyond the mother’s stated wish that the children live with her.

9. No affidavit evidence has been placed before the Court by either the mother or father.  The paternal grandmother relies upon her affidavit filed today, being 26 July 2010.

10. Both the paternal grandmother and the Independent Children’s Lawyer rely upon the affidavit of the Family Consultant which I have already identified.

Summary of Parenting Law

1. Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order”.

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects in determining the nature of the parenting orders which ought properly be made.

3. When making parenting orders the Court is mandated to regard the children’s best interests as the paramount consideration. The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the children.

4. The Court is required to apply a rebuttable presumption that it is in the best interests of the children for the children’s parents to be allocated equal shared parental responsibility for them. That parental responsibility pertains to the major long-term issues concerning the children, being matters such as education, religion, culture, health, name, and living arrangements.

5. However, the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of one of the children or family violence, and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility for them.

6. It is also a situation in interim proceedings such as these that the Court is not required to apply the presumption of equal shared parental responsibility if the Court considers it inappropriate in the circumstances.

7. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the children spending equal, or alternatively, substantial and significant time with each of the parents.

8. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

9. Accordingly, I turn to consider the evidence available at this stage of the proceedings.

Analysis of Evidence

1. I pause to observe that interim hearings are determined by reference to evidence with is uncontentious, or by reference to inferences that fairly arise.  The Court is not assisted in the determination of interim parenting orders by the reception of evidence that is the subject of controversy.  For that reason, it is important to record some relevant facts that are admitted between the parties.

2. As I have mentioned, the two eldest children live with the paternal grandmother. The eldest child has been living with her for approximately seven months.  The second child has been living with her for the last couple of weeks.  The eldest child is receiving medical treatment or therapy on the Central Coast where he lives with the paternal grandmother.  He consults with both a paediatrician and a psychologist in that area.  If he was to be removed from the area, his professional relationship with that paediatrician and psychologist would be dislocated.  The second child presently has a referral to a Central Coast medical provider for the purposes of his receipt of speech therapy.  Similarly, if he is removed from the Central Coast, that referral will not be fulfilled and the child will not have the speech therapy which he presumably requires.

3. The mother filed today a Notice of Address for Service indicating that she now lives at an address in the northern coast region.  For her to have filed that document it follows that she has already moved to that address, and further, that she has done so without the two eldest children in her care.  The evidence before the Court also suggests that the father has recently terminated his employment to permit his relocation from the Central Coast area, with Queensland his potential destination.

4. The Family Consultant, Ms R, has prepared a Children and Parents Issues Assessment which, as I have mentioned, is annexed to her affidavit.  The mother’s solicitor submits to the Court that numerous of the stated facts and opinions of the Family Consultant are the subject of dispute by the mother.  The mother’s solicitor accepts that the Court is unable to determine the factual disputes as between the mother and Family Consultant, given that their respective evidence is not to be tested in cross examination, and the mother’s solicitor similarly accepts that the mother does not possess the requisite expertise to call into doubt the professional opinions and recommendations of the Family Consultant.

5. Of salience to the interim hearing are comments made by the Family Consultant in her assessment report to the following effect:

   “It appears that [H] and [C’s] experience of the mother has been one of physical, emotional and psychological abuse and neglect.  It would appear that the father has on a number of occasions intervened to protect the children, but it would appear that the father is, to a much lesser extent, a victim of the mother’s violence and abusive behaviour himself.

   It is evident that the children are suffering significant mental health issues and appear to be at further risk of harm if placed back in the mother’s household.

   It would appear that with the detailed reporting of the mother’s behaviour and drug abuse, the children are at this point in time best placed with the paternal grandmother who appears to be supporting their physical, emotional and psychological needs.

   Due to the mother and the father presenting as a ‘flight risk’ and the serious concerns about the risk of harm to the children, it is recommended that the Department of Human Services be asked to intervene and consider placing all three children with the paternal grandmother until further assessment can be undertaken”.

6. Self-evidently, the weight which should be attributed to that evidence at this stage of the litigation is considerable.

Conclusion

1. In reliance upon s 61DA(3) of the Act, I decline to apply the presumption of equal shared parental responsibility for the children, as I consider that it would not be appropriate to do so in the circumstances of this case. If at the final hearing the allegations of child abuse against the mother are ultimately sustained, it would mean that the presumption of equal shared parental responsibility would be rebutted.

2. Given that that issue is presently undetermined, and cannot be determined whilst ever the evidence remains untested, I am satisfied that it would be counter-productive to apply the presumption of equal shared parental responsibility in favour of each of the parents of the children.

3. I am presently satisfied that the best interests of the children warrant an allocation of parental responsibility for them solely to the paternal grandmother.

4. Pursuant to s 61DB of the Act, the allocation of parental responsibility at this interim stage will not be binding upon the Court in the determination of the final parental responsibility orders.

5. I am also satisfied on the available evidence that the best interests of the children presently demand that they live with the paternal grandmother, as the two eldest children presently are.  I am satisfied that the home afforded to them by the paternal grandmother will provide them with the most stability at this stage of their lives.

6. No orders are made with respect to the children spending time with either of the parents, simply because there is no evidence to permit the Court to make a rational decision about a proper regime to implement for the children spending time or communicating with the parents.

7. There is an apprehended violence order in existence for the protection of the paternal grandmother against the mother, although no party has been able to tender a copy of that family violence order. 

8. There is also an apprehended violence order in existence for the protection of the mother and two youngest children against the father.  The Independent Children’s Lawyer has tendered a copy of that order in its interim form only, being Exhibit ICL1, but the Court was informed that the interim order was converted to a final order on 17 May 2010.  No party has been able to tender a copy of that family violence order in its final form.

9. I am unable to say on the available evidence whether the existent family violence orders prevent the “defendants” from contacting the “protected persons” or whether they simply moderate the manner in which they are able to do so.  At worst, the mother will need to contact the father and the paternal grandmother will need to contact the mother to overcome any impediments to communication imposed by the family violence orders.

10. For those reasons I am satisfied that the following orders are made in the best interests of the children.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin.

Associate: 

Date:  26 July 2010