Carlos and Carlos and Anor

[2014] FCCA 942

FEDERAL CIRCUIT COURT OF AUSTRALIA

CARLOS & CARLOS & ANOR [2014] FCCA 942

Catchwords:
FAMILY LAW – Application by grandmother – interim orders.

Legislation:  

Family Law Act 1975 (Cth), ss.60B, 60CC

Applicant: MS C CARLOS

First Respondent: MS A CARLOS

Second Respondent: MR BAHN

File Number: DGC 577 of 2014

Judgment of: Judge Phipps

Hearing date: 15 April 2014

Date of Last Submission: 15 April 2014

Delivered at: Dandenong

Delivered on: 15 April 2014

REPRESENTATION

Solicitors for the Applicant: Mr R appearing as Amicus Curiae

The First Respondent: No appearance

Counsel for the Second Respondent: Ms Dellidis

Solicitors for the Second Respondent: Cahill & Rowe Family Law

ORDERS

1. That these proceedings be transferred to the Melbourne Registry of the Federal Circuit Court and travel with file reference MLC1600/2009.

2. That the matter be adjourned to the Duty List on 10 June 2014 at 10.00am in the Federal Circuit Court of Australia at Melbourne.

3. That the Orders made by the Federal Circuit Court of Australia, Melbourne Registry on 7 August 2009 be suspended.

4. That the father have sole parental responsibility for the child [X] born [in] 2005.

5. That the child spend time and communicate with the mother as may be agreed between the mother and father in writing, including via SMS, with such time to be supervised by the father.

6. That the child spend time with the maternal grandmother as follows:

   (a)On the fourth Sunday of each month from 10.00am until 4.00pm;

   (b)As may otherwise be agreed between the father and maternal grandmother in writing, including via SMS;

   (c)Subject to and conditional upon the maternal grandmother abiding by the injunction in paragraph 7 herein.

7. That the maternal grandmother, her servants and agents, be and are hereby restrained by injunction from bringing the child into contact with the mother, MS A CARLOS or permitting the child to remain in contact with the mother.

8. That each of the father and maternal grandmother, their servants and agents, be and are hereby restrained from:

   (a)Discussing these proceedings, and the allegations made in these proceedings; or

   (b)Denigrating the other party or members of their family;

   (c)to or in the presence or hearing of the child, or permitting any other person to do so.

9. That changeovers for the purposes of the child spending time with the maternal grandmother shall take place at [omitted].

10. That all extant Application for interim relief be otherwise dismissed.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT DANDENONG

DGC 577 of 2014

MS C CARLOS

Applicant

And

MS A CARLOS

First Respondent

MR BAHN

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is a grandmother’s application.  The child concerned is [X] born [in] 2005.  The application is brought by the maternal grandmother.  The respondents are the father and the mother.  The mother has not appeared.  The affidavits of service show that she has been served with the affidavit and supporting affidavit and the response and its supporting affidavit.  There are issues about what should happen between father and mother which I can put to one side just for the moment.  What the grandmother is proposing is that [X] spend time with her grandmother each alternate weekend from 10.00am to 4.00pm on Sunday commencing Easter Sunday.

2. The father’s proposal is that [X] spend time with her grandmother on the third Sunday of each month from 11.00am until 3.00pm.  There is a dispute about the length of time and the frequency of the time.  As far as orders concerning the mother are concerned, the father is proposing that existing orders for the child to spend time with the mother be discharged and there be an order that the child spend time and communicate with the mother as agreed between the mother and the father without setting out how that should be done. 

3. The background is that the parties had a relationship that lasted for about eight or nine months but did not live together.  It finished before [X]’s birth [in] 2005.  Regrettably, the mother has, as seems quite clear, a long term problem with illicit drugs.  According to the father, Child Protection Services intervened shortly after [X] was born and she became subject to a care order as he describes it.  The grandmother had the care of the child for about four years.  Then there were previous court proceedings which resulted in a number of consent orders made on 7 February 2007 in the State Magistrates Court of Victoria which provided for equal shared parental responsibility, for the child to live with the mother and spend alternate weekends and other times with the father.

4. In this court interim orders were made on 16 March 2009 which provided for [X] to live with her father.  There was provision made in September in the interim orders for her to spend time with her mother and then final orders were made on 7 August 2009 which provide for equal shared parental responsibility, the child to live with the father and spend time with the mother each alternate weekend from 5.00pm Friday to 5.00pm Sunday. The time to take place at the home of the maternal grandmother and to be supervised by the maternal grandmother.

5. The change of residence from father to mother came about as a result of the father receiving, he says, a telephone call from Child Protection Services informing that the mother had been pulled over by police.  She was driving unlicensed with the child unrestrained in the car and drug paraphernalia had been found.  The father commenced proceedings and the orders I have described were made.

6. The grandmother commenced this application because she says that the father is refusing to hand over [X] to have the time with the mother.  The father’s affidavit says that there have been times he understands or has a firm belief that the child has been spending time with the grandmother at weekends and the mother has not been there and that has happened with increasing frequency.  He also deposes to what he believes to be significant conflict between the mother and the grandmother with loud arguments reported back to him by the child who was upset as can be imagined.  He also says the child has reported that she has been with her mother unsupervised by the grandmother, most recently in February when she went to a swimming pool with her mother.  The father says that he has arranged for the grandmother to see the child at lunchtime at school initially fortnightly and then weekly, and that is being facilitated by the school with a school staff member supervising.  The mother last saw the child on her birthday, [date omitted] at McDonalds.  The mother and grandmother saw [X] there and the father has organised several other occasions. 

7. What the father is proposing so far as the mother’s orders are concerned is that they be discharged.  It is probably better that they be suspended given that these are interim orders that he have sole parental responsibility, the child spend time and communicate with the mother as may be agreed between the mother and father in writing including via SMS, such time to be supervised by the father.  I’ll deal with that first.  The father’s material shows that in February 2013 the child reported spending unsupervised time with the mother.  The father’s solicitors wrote to the mother setting that out and then requesting that drug screens be carried out but they have not been.  Paragraph 9 of the orders made on 7 August 2009 provide for the mother to submit to random drug screens when requested by the father’s lawyer and they have not happened.

8. The mother has not appeared although the court was informed this morning by the grandmother, through the interpreter, that the mother was in the vicinity of the court and that she was just finding a parking space.  She has been called prior to this afternoon’s hearing.  She has not attended.  The inference that can be drawn from the mother not providing drug screens, not attending today despite being served is that I can have some confidence in what the father says, that is, that the mother’s attendance at the grandmother’s has been sporadic, that there are good grounds for thinking that she has not solved the drug problem and that she has had unsupervised time with the child.

9. Application of the second of the primary considerations in s.60CC of the Family Law Act 1975 (Cth), the need to protect a child from harm, leads to the conclusion that until there can be some further investigation and until there can be some material from the mother, those orders should be suspended and the father should have sole parental responsibility. The prospects of him being able to have discussions with the mother about the care of the child and about major long term matters, education, health and religion are not existent, he should have sole parental responsibility.

10. So far as the maternal grandmother is concerned, she quite clearly wants to see the child and the child has had a long and strong relationship with her grandmother.  The grandmother has had a large part of her care in her earlier years and has seen her on a frequent basis and still sees her on a frequent basis, and that is being facilitated by the father.  But she is quite open in her material in which she says that one of the reasons she wants to have the child spending time with her is so that the mother can maintain her relationship with her child and that is not the way children’s proceeding should be dealt with. 

11. If there are issues about the mother having time with the child that is something that the mother should be pursuing and the court should have material from the mother so as to assess the mother’s ability to have a relationship with the child and for the child to be safe.  The fact that the mother is not seeing the child and that there are difficulties associated with that is not to be avoided by having a grandmother making an application so that the mother can see the child.  One of the other matters in dispute is a proposal by the father that there be an injunction restraining the grandmother from bringing the child into contact with the mother.  That is opposed by the grandmother.

12. What this is, is an application by a grandmother to spend time with a granddaughter with whom there is a strong relationship. But so far as s.60CC considerations are concerned, it is the second of the additional considerations, the child’s relationship with the grandmother and I have to bear in mind the provisions in s.60B of the Family Law Act 1975 (Cth) which is relevant, which provide that a child has the right to have a relationship with parents and with other people including grandparents. The child’s relationship with her grandmother has to be balanced against the risk that when the child is spending time with her grandmother that the mother will attend and then that raises the risk that there may be unsupervised time in circumstances were I cannot be satisfied that the child would be safe with the mother unsupervised.

13. I think the appropriate balance between those two is what is proposed by the father that there be one Sunday a month and otherwise as agreed.  I think it is clear that the school lunchtimes will continue so that [X] will continue to have that relationship with her grandmother.  There are two things about the times.  The grandmother would like to have it commence on Easter Sunday.  She has a strong religious faith in the [omitted] Church and so would like to take the child to Easter celebrations.  The father has Easter family matters arranged, and it is more appropriate for the principal carer to have the care of the child at Easter than to be with a grandmother. 

14. The other issue is the times, whether it should be 11.00am to 3.00pm or 10.00am to 4.00pm.  The grandmother lives in [suburb omitted].  The changeover point is at [suburb omitted].  The father is living at [suburb omitted], and the grandmother says she has an hour’s driving each way.  Other people might drive it in less time, but she is 71, and she drives at her own pace and her own route, and I can accept that she might find an acceptable route to her which would take longer.  Ms Dellidis puts that the shorter time reduces the risk of exposure to the mother, but I think the acceptable balance is to make it 10.00am to 4.00pm every third Sunday.  There should be the restriction on the grandmother permitting the mother to see the child.  That should continue. That needs some investigation. Changeovers are agreed. There is agreement on restraints on discussing the proceedings or denigrating the other party. 

15. There is also a proposal by the father that the proceedings be transferred to the Melbourne Registry because the father lives at [suburb omitted]. The grandmother has issued these proceedings at Dandenong because it is easier for her to get to Dandenong than the city, but the father is the one with the care of the child, so it is his convenience that needs to take precedence.  That means that it should be transferred to the Melbourne Registry.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Phipps.

Date:  22 March 2014