Cann and Sully and Anor

[2007] FamCA 1730

FAMILY COURT OF AUSTRALIA

CANN & SULLY AND ANOR [2007] FamCA 1730

FAMILY LAW – CHILDREN – Child related proceedings – With whom a child lives – With whom a child spends time – Best interests of child

Family Law Act 1975 (Cth)

Taylor v Taylor (1979) 143 CLR 1

APPLICANT: Mrs Cann

RESPONDENTS: Ms Sully & Mr Cann

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 3213 of 2004

DATE DELIVERED: 31 January 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 31 January 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr K. MacFarlane

SOLICITOR FOR THE APPLICANT: Wighton’s

COUNSEL FOR THE RESPONDENTS:

SOLICITOR FOR THE RESPONDENTS:

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

TJ Mulvany & Co

Orders

IT IS ORDERED THAT

1. All previous Parenting Orders made pursuant to the Family Law Act 1975 be discharged.

2. The Paternal Grandmother exercise sole parental responsibility for all long term and day to day issues concerning the care, welfare and development of the children, C (“[C]”) born … September 2001 and E (“[E]”) born … January 2003.

3. Upon the Mother and the Father providing the Paternal Grandmother with an updated address to which written correspondence can be forwarded to them, the Paternal Grandmother shall inform the Mother and the Father in writing as soon as practicable of any major development concerning the health and/or education of either or both C and E.

4. C and E live with the Paternal Grandmother.

5. C and E spend time with the Mother and the Father, according to such times and conditions which are stipulated by the Paternal Grandmother.

6. The parties be at liberty to provide a copy of these Orders and a copy of Mr. H’s Affidavit filed 8 November 2006 and the reasons for judgement this day to any one or more of the following:

   (a)       Any health / allied health professional assisting any one or more of the parties;

   (b)       Any Manager or Principal and / or delegate of same of any Kindergarten, Creche and / or School attended by either or both C and E from time to time;

   (c)       Any Manager and / or relevant Case Worker of the Department of Human Services.

7. Subject to the discretion of the Manager and / or Principal of any Kindergarten or School attended by C and / or E from time to time and each parent meeting any subsequent costs, the Mother and the Father shall be at liberty to receive all school information customarily provided to parents, including but not limited to, any reports, newsletters, notices, school photographs and like items.

8. The Mother, the Father, the Paternal Grandmother and their servants and agents, be and are hereby restrained from discussing these proceedings in the sight and/or hearing and/or presence of either or both of C and E.

9. The Mother, the Father and the Paternal Grandmother and their servants and agents, such servants and agents to include but not be limited to members of their respective households, be and are hereby restrained from:

   (a)       Criticising and/or insulting and/or harassing the other in the sight and/or hearing and/or presence of either or both of C and E; and

   (b)       From consuming or being present during the consumption of any illicit substance in the sight and/or hearing and/or presence of either or both of C and E.

10. All extant proceedings be otherwise removed from the Act of Pending Cases List maintained by the Court.

11. The appointment of the Independent Children’s Lawyer be discharged.

12. The Independent Children’s Lawyer cause a sealed copy of these Orders to be served on the mother and the father by pre-paid post to their respective addresses.

13. Pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, 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.

THE COURT NOTES

1. The parties understand the Father is currently incarcerated at Metropolitan Remand Centre. A copy of the Independent Children’s Lawyer’s Case Summary / Summary of Argument Document was served upon him by facsimile at such prison on the 30th January 2007.

2. It is expected that the Mother will ensure C and E will spend time with their sibling J (“[J]”) born … June 2006 during the periods of time either or both of them spend with the Mother.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3213 of 2004

MRS CANN  

Applicant

And

MS SULLY & MR CANN  

Respondents

REASONS FOR JUDGMENT

1. The paternal grandmother applies for parenting orders relating to two children, C, born September 2001 and aged 5, and E, born in January 2003 and aged 4.  The parents of the children have major health, psychological and emotional difficulty and on all of the material are clearly quite unable to care for their children.  These proceedings have been conducted on an undefended basis as between the paternal grandmother and the Independent Children's Lawyer.

2. The Independent Children's Lawyer has appeared personally and the grandmother has appeared through Counsel.  I have read the relevant application in affidavit of evidence‑in‑chief of the grandmother and the affidavit of Mr H a forensic psychologist which annexes two reports prepared by him.  Both the mother and father have failed to appear, and while it is only assurances from the Bar table and not on affidavit, those assurances suggest that the parents know about these proceedings, in particular the mother knows and the father it would appear is presently incarcerated in prison.

3. There is nothing in the material to which I've referred which is in any way improbable and I accordingly accept it in it's entirety.  The material persuades me of the following matters.  The grandmother is aged 47.  The mother is aged 28.  The father is aged 26.  The parents commenced a relationship in about 1995.  That relationship was dysfunctional virtually from its outset.  There were separations between the parents, it would appear that there were reconciliations, but at the present time as I have said with the father incarcerated, they are separated.

4. It is unnecessary to go into detail but the grandmother's affidavit persuades me that both of the parents, that is her son and his former partner, lead dysfunctional lives to an extremely high degree.  The major issues appear to be alcohol and other drugs, which they have used and abused to a very high degree.  They have been in numerous programs of detox.  There have been dysfunctional and antisocial behaviours at their home.  At least the father has been involved in violence, and all of this amounts to a conclusion to a high degree of probability that both the parents live in the edge of total dysfunctionality.

5. It is as I say quite clear that they are not able to look after their children.  The Department of Human Services has been involved but there is no current order which would take away the Court's jurisdiction.  On the basis of the children having been placed in the care of the grandmother, it is quite clear that the department is persuaded of her parenting abilities, as am I.  In considering an application such as the present one, I must regard the children's best interests as the paramount consideration - paramount means most important, not sole.  I must consider the various objective principles underlying those objects contained in Family Law Act 1975 (Cth) s 60B.

6. They emphasise the right of children to know and be cared for and have regular contact with their parents and other persons important in their best interests, unless I regard it as being contrary to their best interests.  The principles place the duty and responsibility of caring for their children on the parents, those are duties and responsibilities which the parents in this matter have clearly not observed.  I am persuaded on the balance of the material and on the orders sought on behalf of the grandmother, that as long as she is satisfied that the children are safe, that she will promote the relationship between the children and their parents.

7. I am satisfied that she recognises the importance of those relationships and that in all respects she will honour the requirements of the legislature in the object and principles to which I have referred.  I must first consider the presumption in the Act that the parties should equally share parental responsibility for the children.  That is a rebuttable presumption, specifically rebuttable on the finding of the court that the children are at risk.  In my view the evidence is overwhelming that the parents are unable to participate in decision-making with respect to their children to the benefit of those children, and I find the highest degree of probability that it is appropriate that the presumption be rebutted.

8. It follows that sole parental responsibility will be with the grandmother.  I therefore do not need to consider the question of equal shared time as far as the parents are concerned.  I am therefore not required also to consider the question of substantial and significant time.  In circumstances in which the dysfunction of the parents is as high as it is in the present matter, given the status quo that the children have lived with the grandmother for several years and that prior to that she had a substantial role in their care, and given that the evidence suggests that the children are being brought up appropriately, safely and in their best interests, in my view it is clear that they should be placed in the care of the grandmother and that they should live with her.

9. In my consideration of what, if any, time the children should spend with their parents and whether they should communicate with them, as the parents have displayed no preparedness to be involved in these proceedings, it is in my view not appropriate that any specific order in those regards be made.  As I have said I am confident that the grandmother will do everything possible for the relationship between the children and the parents and as far as the children spending time with them is concerned, I am satisfied that the grandmother will promote bringing that about.  The problem in those regards is going to be the attitude of the parents rather than of the grandmother.

10. Counsel for the Independent Children's Lawyer has complimented the grandmother for stepping into a very difficult situation concerning her son and his former partner, and I can only repeat that.  I am given enormous confidence knowing the children will be in the care of the grandmother and I rule accordingly.  There have been a number of orders submitted to me on behalf of the Independent Children's Lawyer, or by the Independent Children's Lawyer, which I have already discussed with counsel.  In my view it is appropriate that those orders be made.

11. I have given consideration to whether I should specifically reserve liberty to the parents or either of them, to apply to vary or set aside these orders.  I am satisfied the law provides them with sufficient rights, particularly arising out of the decision of the High Court in Taylor v Taylor (1979) 143 CLR 1, as a result of their non‑appearance today and in any event these orders do no lock either of the parents out of their right to approach the Court with respect to their children. Accordingly I do not see that it is necessary to reserve specific liberty to apply.

12. That the Independent Children's Lawyer cause a sealed copy of these orders to be served on the mother and the father by pre-paid ordinary mail to their last known address. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Mushin J

Associate

Date:  May 2009