Clarke & Snider

[2007] FamCA 89

[2007] FamCA 89

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT BRISBANE  No. BRF2083/01

IN THE MATTER OF:	Clarke	P and M	Applicants
AND	Snider Clarke	Mr D	Respondents

EX TEMPORE JUDGMENT

CORAM:	BENJAMIN J
DATE OF HEARING:	19 January 2007
DATE OF JUDGMENT:	19 January 2007

APPEARANCES:

Ms Armstrong	Appears on behalf of Applicants
No appearance	On behalf of Respondents
Mr Williams	Appears on behalf of Independent Children's Lawyer

CATCHWORDS:

FAMILY LAW - CHILDREN - Consent Orders

ORDERS

1. THAT P Clarke and M Clarke (“the applicant maternal aunt and applicant maternal grandmother respectively”) have equal shared parental responsibility in respect of the children N born in January 2004 and D born in June 1995 (“the children”).

2. THAT the said children live with the applicant aunt and applicant grandmother.

3. THAT the respondent father spend time with the children at all times by agreement and failing agreement as follows:-

   (a)from 9.00am Saturday until 3.00pm Sunday each alternate weekend during Queensland school term;

   (b)the children to be at liberty not to attend such contact time if they express a significant opposition to it;

   (c)should the children not wish to attend such time with the father the children to telephone the father and advise him that such time will not be occurring;

   (d)that the children will spend time with the respondent father on Father’s Day from 9.00am until 5.00pm;

   (e)that the father shall give the applicant aunt and applicant grandmother at least six weeks written notice of his intention to commence spending time with the children in accordance with this order.

4. THAT the respondent mother spend time with the children at the applicant aunt or applicant grandmother’s home upon notifying the applicants that such time is to occur.

5. THAT the children be at liberty to contact any or all of the parties at reasonable times by telephone.

6. THAT the parties be at liberty to contact the children at reasonable times by telephone when the children are in the other parties care.

7. THAT the children’s medical practitioner, day care centres, dentists, schools and other health or education related facilities are authorised to provide any information in relation to the childrens’ health or education in relation to any of the parties in these proceedings at that party’s expense.

8. THAT neither party discuss or have such discussion in the presence of or hearing of the children family law proceedings or issues with the children or place any blame against the children on the outcome of any of the family law proceedings.

9. THAT the parties promptly notify each other in the event of any significant illness, hospitalisation or injury to the children and ensure that the other is fully informed of the medical needs of such time when the children are residing with or having contact with the party.

10. THAT all parties keep the others informed as to their place of residence and any change of telephone numbers, mobile telephone numbers or addresses within seventy two hours of such change occurring, such notice to be in writing at the last known address of the parties.

11. THAT none of the parties denigrate the other or their partners or families within the hearing or the presence of the children or allow any other person to do so in the hearing or the presence of the children.

12. THAT 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.

13. THAT leave be given for each of the respondents to apply in respect of these orders within twenty eight days after service of these orders upon them.

14. THAT this matter be removed from the list of cases requiring determination.

15. THAT all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

16. THAT the appointment of the Independent Children’s Lawyer is terminated as and from three (3) months from the date of this order.

    IT IS DIRECTED

17. THAT a copy of these orders be forwarded by ordinary pre-paid post by the Independent Children’s Lawyer to each of the respondents within twenty one days of the date of these orders.

18. THAT a copy of my reasons be ordered and placed on the court file.

    IT IS NOTED

19. THAT these proceedings were heard on an uncontested basis.

    IT IS CERTIFIED

20. THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

REASONS

1. This is an application by P Clarke and M Clarke, who are the maternal grandmother and maternal aunt of the children N born January 1994, who is now aged 13, and D, who was born in June 1995 and is now aged 11.  The respondents to these proceedings are Mr Snider, the father, and Ms Clarke, the mother.

2. The proceedings relate to parenting orders in respect of the children who, on the evidence before me, appear to have been living with the applicants since March 2005.  The hearing is by way of an uncontested hearing and in that regard I note that both the mother and father were called outside Court this morning at about 20 past 10 and there was no appearance by them.

3. There are affidavits of various solicitors, including Lynn Armstrong and Peter Williams and another affidavit that came in this morning, showing that the respondent mother and father have been provided with copies of the amended applications, affidavits and informed that the proceedings were listed for uncontested hearing today.  I am satisfied on balance that they had notice of the proceedings and they have chosen not to attend today and as such the matter will proceed on an uncontested basis.

4. The affidavit material before the Court is an affidavit of Ms H which annexes to it a family report, an affidavit of each of the applicants filed 27 November 2006, an affidavit of Lynn Armstrong of 17 January 2007 and an affidavit of Peter Williams of 11 January 2007.

5. I am assisted with written submissions by the independent children's lawyer and by the solicitor for the applicant maternal grandmother and maternal aunt.  I am also assisted by a chronology.  I accept and include in these reasons the written submissions by both the applicants and the independent children's lawyer.

6. As I said earlier, the children have resided with the applicants since 8 March 2005 in circumstances where they were placed in the care of the applicants by the mother and there is a copy of a letter attached or annexed to an affidavit of the maternal grandmother.  On the affidavits there is a good relationship between the children and the applicants.

7. As pointed out by the independent children's lawyer, paragraph 51 of the family report summarises in a nutshell the issues and the difficulties of this case and I quote from that report dated 14 November 2006 where the reporter says:

   "At present these children have to somehow manage a sense of abandonment by both of their parents.  The current residential arrangements for them with [the maternal aunt] and [maternal grandmother] are precarious and fraught with their own difficulties that include the influence of- - - "

   "- - - [Mr I’s] continuous pattern of criminal offences.  [The maternal aunt’s] criminal history and drug use, albeit minimal regarding the amount of marijuana she was charged with possessing, and the exposure to other family members' alleged drug use and criminal activity.

   However, at present this is all these children have as a home and this home provides them with some sense of stability, love and care.  The children attend school regularly and their teachers have provided very positive comments about their behaviour, social skills, presentation and academic performance, which indicate a level of nurturing that is appropriate for them at this time.

   Both children are positively attached to [the maternal aunt] and [maternal grandmother].  The children also report strong positive relationships with their[maternal] uncle and his wife and their children.  [N] and [D] also have regular contact with their grandfather [Mr G]."

8. In exercising jurisdiction in relation to children the Family Court is bound by the provisions of the Act. The Act was the subject of significant amendment in 2006 with the passing of the Family Law Amendment Shared Parental Responsibility Act on 10 May, relevant parts of which commenced on 1 July 2006. The objects of those provisions of the Act relating to children are to ensure the best interests of the children are set by - as set out in s 60B(1):

   (a)Ensuring the children have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child; and

   (b)Protecting children from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence; and

   (c)Ensuring children receive adequate and proper parenting to help them achieve their full potential; and

   (d)Ensuring parents fulfil their duties and meet the responsibilities concerning the care, welfare and development of the children.

   The basic principles underlying those objects are set out in par 60(b) - and I will not quote that at length.

9. Each of the parents of a child has complete and several parental responsibility.  This is subject to any Court orders and must be subject to the presumption arising out of s 61DA.  In this case I have come to the conclusion and I will set out in my reasons that the presumption arising in s 61DA ought to be rebutted under sub-s (4) of s 61DA for the reasons I will enunciate further.

10. Bearing in mind that I will find that the presumption is rebutted there is then no need for me to consider in a specific way as provided by the Act equal time or substantial and significant time, although I will consider that in any event in any reasonable assessment in respect of the best interests of children under s 60CC.

11. I am then obliged to determine where the children live and with whom they should spend time and other specific matters taking into account the best interests of the children as set out in s 60CA and in doing so and determining those interests I am to take an account of the factors set out in s 60CC(2), (3) and (4).

12. The first of the considerations is, the Court must evaluate the nature and quality of the relationship and establish whether there is any benefit or meaningful relationship which exists.  By this I mean such evaluation should include consideration of whether on the facts a meaningful relationship can be established and, if so, what is the benefit of that to the child or children.

13. It is clear on the evidence that the children have a close bond with the applicants.  Their bond with the parents is problematic.  The reaction of the children to their father in late 2004 and early 2005 causes some concern, in particular their desire not to live with him.  I accept that the children lived with the mother for most of their lives until 2003 and I also accept that the applicant maternal aunt has been involved in the care of the children most of their lives and significantly with both the aunt and the grandmother since March 2005.

14. It seems to me there is some value in some continuing relationship between the children and their parents and this is made clear in the family report and to the credit of the applicants in the affidavit material they indicate that they will continue to try and enable such relationship to either redevelop or continue.  I find that neither the maternal aunt nor the maternal grandmother are seeking to undermine or prevent the children from having a relationship with their parents.

15. There is a need in this case to protect the children from physical or psychological harm as set out in s 60CC(2)(b) and in that regard I simply note and repeat the submissions of both the applicants and the independent children's lawyer set out in their submissions.

16. Similarly, I note that the children have expressed a view that they wish to continue living in their present circumstances and have clearly expressed a view they do not wish to live with their father or mother.  It is sad for these children that their father chose to walk away from them in June or July last year.  It is hoped that once these proceedings are at an end he will reconsider that view and retain some significant bond with these children.

17. In terms of the relationship of the children with each of the children's parents I note the matters set out in the affidavits, I note the matters set out in these reasons and confirm that they have a close relationship with the applicant, but a problematic relationship with their parents.  The applicants have expressed a willingness to facilitate and encourage a relationship between the children and the parents.  The parents, sadly, have not indicated a desire to maintain contact with the children.  The break in the relationship particularly between the father and the children is not at the hands of the applicants nor the children.  There is no proposed change except, on the facts, it appears that the father has no interest or has no desire at the present time to spend time with the children.  I again accept the submissions of both parties in relation to the other matters under s 60CC. 

18. On balance I am satisfied that the orders sought in the application ought to be made.  I am satisfied that this is not a matter where the presumption required under s 61DA ought to apply.  I will be making an order that the father spend time with the children, but I will be putting in place a provision requiring him to give notice so that his return, if it comes from out of the blue, can be managed in a sensible and hopefully sensitive way in relation to these children.

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as CLARKE & SNIDER & ANOR