FAMILY COURT OF AUSTRALIA
| CARLSON AND ORS & BOWDEN | [2008] FamCA 1064 |
| FAMILY LAW – CHILDREN – with whom the child lives – where each parent presents with vulnerabilities and reduced parental capacity – Paternal grandparents seek lives with orders – Entrenched mistrust and hostility between parents, between mother and grandparents and between mother’s new partner and paternal family –Parents have little capacity or willingness to promote a relationship with the other – Grandparents present a stable and responsible relationship for the child - Best interests of the child to live with and receive predominant care from the grandparents – Child to spend time with parents from this stable base FAMILY LAW – CHILDREN – Parental responsibility – Proposal that the parents and grandparents have equal shared parental responsibility – Discussion of framework of Act in relation to equal shared parental responsibility and non-parents – Parties unable to communicate and consult as required by Act – In child’s best interests that the grandmother have sole parental responsibility for ultimate decisions – Nature and structure of orders as orders require parties to attempt consultation and agreement |
| Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 64B, 65AA, 65C, 65D, 65DAA, 65DAC, 65DAE, 65L, 68F(2) |
| AIF v AMS (1999) 199 CLR 160 CDJ & VAJ (1998) 197 CLR 172 Neil v Nott ((1994) 68 ALJR 509 Runcorn & Raine [2008] FamCA 837 Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218 U v U (2002) 211 CLR 238 |
APPLICANT GRANDPARENTS: | Mr Carlson Ms Brack |
| APPLICANT FATHER: | Mr Grant |
| RESPONDENT MOTHER: | Ms Bowden |
| INDEPENDENT CHILDREN’S LAWYER: | Harrington Family Lawyers |
| FILE NUMBER: | BRC | 9331 | of | 2007 |
| DATE DELIVERED: | 4 December 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 20-22 October 2008 |
REPRESENTATION
| FOR THE APPLICANTS: | The Applicants appeared in person |
| COUNSEL FOR THE RESPONDENT: | Mr Pieterse |
| SOLICITOR FOR THE RESPONDENT: | Richard Gray & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Dr Sayers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Harrington Family Lawyers |
Orders
That the child, L born on … October 2004 (“the child”) live with the paternal grandmother Ms Brack and her partner, Mr Carlson.
That the paternal grandmother shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (as amended)) in respect of the child, save that the paternal grandmother shall, prior to making the sole ultimate decision about any such issue:
a) Use her best endeavours to advise the mother and father in writing of the decision intended to be made;
b) Seek the mother’s and father's written response in relation thereto;
c) Consider, by reference to the best interests of the child, any such response prior to making any such decision;
d) Advise the mother and father in writing as soon as reasonably practicable of her ultimate decision.
That the child spend time with the parents as follows:-
A.The mother
a) Until the child…
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- Carlson v Bowden [2008] FamCA 1064
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- [2008] FamCA 1064
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CaseChat Overview and Summary
The primary legal issues before the court were to determine with whom the child should live and the nature of parental responsibility, particularly in the context of non-parental applicants and the requirement for parents to communicate and consult. The court was tasked with assessing the best interests of the child, considering the vulnerabilities of the parents and the stability offered by the paternal grandparents. A further issue was the framework of the *Family Law Act 1975* concerning equal shared parental responsibility and how it applied when parties were unable to communicate effectively.
Murphy J reasoned that the best interests of the child would be served by the child living with and receiving predominant care from the paternal grandmother and her partner, Mr Carlson. This decision was based on the grandparents presenting a stable and responsible environment. While the court acknowledged the proposal for equal shared parental responsibility, it found that the parties' inability to communicate and consult rendered this impractical. Consequently, the court ordered that the grandmother have sole parental responsibility for ultimate decisions, albeit with a requirement to consult with and consider the input of both parents in writing before making such decisions. The child was ordered to spend time with each parent from this stable base, with specific arrangements detailed for the mother and father, including conditions for the father's time with the child related to his engagement with parenting programs and remaining drug-free. The orders also included provisions for communication, changeovers, and the involvement of a Family Consultant to supervise compliance.
Orders
Orders of the court
1.
That the child, L born on … October 2004 (“the child”) live with the paternal grandmother Ms Brack and her partner, Mr Carlson.
2.
That the paternal grandmother shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (as amended)) in respect of the child, save that the paternal grandmother shall, prior to making the sole ultimate decision about any such issue:
a) Use her best endeavours to advise the mother and father in writing of the decision intended to be made;
b) Seek the mother’s and father's written response in relation thereto;
c) Consider, by reference to the best interests of the child, any such response prior to making any such decision;
d) Advise the mother and father in writing as soon as reasonably practicable of her ultimate decision.
3.
That the child spend time with the parents as follows:-
A. The mother
a) Until the child commences school in 2010:
i) from 9:00am Wednesday until 5:00pm Thursday in the first week; and
ii) from 5:00pm Friday until 5:00pm Sunday in the second week.
b) When the child starts school, from after school Friday until the commencement of school on the following Monday or Tuesday, should there be no school on the Monday, on the first and third weekends of a 4 week cycle commencing on 1 February 2010;
c) On the child’s birthday as follows:
i) In odd numbered years from after school on the day before his birthday until commencement of school on his birthday;
ii) In even numbered years from after school on his birthday until the commencement of school on the day after his birthday;
iii) If it falls on a weekend from 12:00 noon until 6:00pm on the birthday.
d) On the mother’s and baby T’s birthday as follows:-
i) If they fall on weekday from 3:00pm until 6:00pm, and
ii) If they fall on a weekend from 12:00 noon until 6:00pm on the birthday.
e) On Mother’s Day from 9:00am until 5:00pm Sunday, provided that on Father’s Day the child shall spend time with the father from 9:00am until 5:00pm on that day.
f) From 2:00pm on Christmas Day until 2:00pm on Boxing Day in even numbered years and from 2:00pm on Christmas Eve until 2:00pm on Christmas Day in odd numbered years.
g) For one week from 12:00 noon on the first day until 12:00 noon on the 7th day as follows:-
i) The first week of the June/July gazetted school holiday period;
ii) The first week of the September/October gazetted school holiday period;
iii) For one week from 12:00 noon on New Year’s Day;
iv) The last week commencing on a Saturday of the Christmas School Vacation period.
h) That the time the child is to spend with the mother pursuant to order 3A(a)(i) , 3A(a)(ii) and 3A(b) be suspended during gazetted school holiday periods and the cycle shall recommence on the first weekend after school resumes.
i) The mother communicate with the child by telephone once per week on a Tuesday, with the mother to initiate the telephone calls to the child’s residence between the hours of 6:00pm and 6:30pm and with the call to last no more than 15 minutes.
B. The Father
a) Until the child commences school and should the father not be working then:
i) From 9:00am until 12:00 noon each Friday, and
ii) Such other times as may be arranged with the paternal grandmother to take place at the paternal grandmother’s home.
b) That after the father provides to the paternal Grandmother written confirmation of having enrolled in a Triple P Group Program (4 x 2 hour group sessions held once per week, followed by 3 x 15 minutes to 30 minutes telephone calls once per week and a Post Separation Parenting Program) and until the child commences school, the father spend time with the child in addition to the Friday morning, from when the father finishes work on a Tuesday until the commencement of work the following morning in the second week of a 2 week cycle.
c) That when the child starts school, provided the father remains drug free and has attended the Triple P Group Program and the Post Separation Parenting Program, from 5:00pm Friday until the commencement of school on the following Monday or Tuesday, should there be no school on the Monday, on the second weekend of a 4 week cycle.
d) During school holiday periods on such occasions as may be arranged with the paternal grandmother.
e) From 9:00am until 5:00pm on Father’s Day.
f) On the child’s birthday at such times and such places as may be negotiated with the paternal grandmother to coincide with the time the child spends with the paternal grandmother on his birthday.
g) On the father’s birthday:-
i) From 3:00pm until 6:00pm if it is a weekday; or
ii) From 12:00 noon until 6:00pm if it is a weekend, regardless of whether the child is with the paternal grandmother or with the mother.
h) On Christmas Day at such times and such places as may be arranged and agreed with the paternal grandmother to coincide with times when the child is with the paternal grandmother on Christmas Day.
4.
That subject to the Father having enrolled in the Triple P group programme and then the Post separation parenting programme and remaining drug free, the Applicant Grandmother and her partner shall allow the Father to have unsupervised time with the child as set out in these orders and at such further times as may be agreed provided that the time is not to reduce the Mother's time with the child.
5.
That in relation to all changeovers between the Paternal Grandmother and the Mother or the Mother and the Father:
a) the Paternal Grandmother and/or her partner or the Mother and/or her Mother shall deliver the child to McDonalds, G and collect the child from McDonalds, G;
b) only the Paternal Grandmother, her partner, the Mother or the Maternal Grandmother shall be present at changeovers.
6.
That as soon as possible the Mother enrol in a Triple P Group Program (4 x 2 hour group sessions held once per week, followed by 3 x 15 minutes to 30 minutes telephone calls once per week and a Post Separation Parenting Program.
7.
That each party hereby authorises each other party, and shall do all such things to communicate this Order, to the Child’s Child Care Centre or schools :
a) to obtain copies of any reports, any newsletters or other Notices issued by the Child Care Centre from time to time;
b) to attend interviews, sporting activities, excursions or other activities where the Child Care Centre requests parent support or participation.
8.
That within 7 days of the child being enrolled to participate in any sporting or other extra-curricular activity each party shall inform the other of the name of the organisation and all details of the activity including times, place/address, contact person, contact telephone number and the like such that the other party may attend such activity to watch the child participate.
9.
That, at the earliest possible time or within 4 hours, each party shall inform the other party of:
a) Any serious accident or the diagnosis of any medical condition which would prevent the child from attending school or any sporting or other activity;
b) Surgery and hospitalisation and medical treatment for any serious injury, illness or disability.
10.
That this order be authority for the child’s child care, school, doctors or other professionals involved in the child’s life, to provide to each of the parties to this Order, at their own cost, such reports or information as may be requested about the child, copies of the child’s school reports, any school newsletters and other notices issued from time to time.
11.
The Independent Children's Lawyer shall not be discharged until 12 months from the date of these orders.
12.
The Independent Children's Lawyer has liberty to relist on the giving of 2 days notice.
13.
That pursuant to Sect 65L of the Family Law Act 1975:-
a. Compliance with these orders is to be supervised by a Family Consultant of the Family Court of Australia Brisbane Registry and to the extent possible it is requested that the Family Consultant be Mr F;
b. The supervisor shall give any party to the parenting orders such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the parenting orders;
c. Each party shall do all things necessary to encourage their partners to co-operate with the Family Consultant and to attend any meetings at which the parties and their partners are requested to attend;
d. Observations made by the Family Consultant during the Sect 65L process shall be reportable and the Family Consultant shall conduct such interviews, observation and assessments as appropriate so as to prepare a Family Report to be made available to the parties not later than 22 October 2009;
e. Upon receipt of the Family Report all parties shall have liberty to apply to have the matter relisted before Justice Murphy on the giving of 14 days notice;
f. At the expiration of one month from the release date of the report, if the matter has not been relisted then the matter be finalised and removed from Justice Murphy’s docket.
14.
That the Mother and Father undertake random urine or blood or other drug testing with QML in such manner and within 8 hours of a request being received from the Independent Children’s Lawyer.
15.
That when requesting a referral for the drug test from their treating GP and when completing the request for QML to undertake the drug tests, the Mother, Father and Mr V must specify that:
a. The test is for a medico legal purpose;
b. Supply a copy of this order to their requesting GP and to QML; and
c. Advise their prescribing GP and QML that if the test results are positive for opiates or any other possible illicit drugs, then QML are authorized to undertake such further tests including a GCMS test to identify the drug and the quantity of drug identified in the drug test.
16.
That the Mother take all steps and do everything in her power to persuade her partner, Mr V, to agree to and to undertake random urine or blood or other drug testing at the request of the Independent Children’s Lawyer and to do so within 8 hours of the receipt of a request from the Independent Children’s Lawyer.
17.
That the Mother, Father and Mr V authorize, by this Order, QML to speak to and supply the Independent Children's Lawyer with all documents and information as may be requested in relation to their drug tests.
18.
That the parties shall bear their own costs of any drug tests undertaken.
19.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations 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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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