Coleman and Hindle and Ors (Miscellaneous Applications)
[2009] FamCA 1039
•23 October 2009
FAMILY COURT OF AUSTRALIA
| COLEMAN & HINDLE AND ORS (MISCELLANEOUS APPLICATIONS) | [2009] FamCA 1039 |
| FAMILY LAW – CHILDREN – Vexatious Application – Interim orders – Stay of orders – Removal of Independent Children's Lawyer |
| Family Law Act 1975 (Cth) Child Protection Act (Qld) |
| C & C [1996] FLC 92-651 Carlson & Bowden [2008] FamCA 1064 |
| APPLICANT: | Ms Coleman |
| FIRST RESPONDENT: | Ms Hindle |
| SECOND RESPONDENT: | Mr Hindle |
| THIRD RESPONDENT | Department of Communities (Child Safety Services) |
| INTERVENOR: | Mr Coleman |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Carter |
| FILE NUMBER: | BRC | 5431 | of | 2008 |
| BRC | 1353 | of | 2008 |
| DATE DELIVERED: | 23 October 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 22 – 23 October 2009 |
REPRESENTATION
| THE APPLICANT: | Appearing in person |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr Balzamo |
| SOLICITOR FOR THE 1ST RESPONDENT: | Ms Hewitt, of Bridges Family Law Specialists |
| THE 2ND RESPONDENT: | Appearing in person |
| COUNSEL FOR THE 3RD RESPONDENT: | Mr Selfridge of Counsel |
| SOLICITOR FOR THE 3RD RESPONDENT: | Crown Law, Brisbane |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Mr Carter of Carter Farquar Lawyers |
| INTERVENOR: | Appearing in person |
Orders
AND UPON NOTING THAT, during the course of proceedings on 22 and 23 October 2009, a number of orders were made which are hereby consolidated
IT IS ORDERED THAT:
The Maternal Grandparents are granted leave to appear by telephone during the proceedings on 22 and 23 October 2009.
The Application to Intervene in Contravention proceedings by the Maternal Grandfather Mr Coleman is dismissed.
The Contravention Application, filed by the Maternal Grandmother on 14 February 2008 is dismissed.
The Amended Contravention Application, filed by the Maternal Grandmother on 6 July 2009 is dismissed.
The Maternal Grandfather is granted leave to intervene in the proceedings for parenting orders currently before the Court.
The Application in a Case, filed by the Maternal Grandmother on 18 August 2009 is dismissed.
The Application in a Case, filed by the Mother on 6 October 2009 is dismissed.
The Application in a Case, filed by the Maternal Grandmother on 16 June 2009 is dismissed.
The Application in a Case, filed by the Maternal Grandmother on 2 June 2009, for the Stay of the Orders of 29 April 2009, is dismissed.
The oral Application by the Maternal Grandmother that Murphy J disqualify himself is dismissed.
The Application in a Case, filed by the Maternal Grandmother on 6 August 2009 is dismissed.
The Response filed by the Independent Children’s Lawyer on 15 October 2009 is dismissed.
The Response filed by the Maternal Grandmother on 21 October 2009 is dismissed.
The Oral Application by the Maternal Grandmother for an adjournment of the interim parenting application is dismissed.
AND IT IS ORDERED UNTIL FURTHER ORDER THAT:
Upon the cessation of the order made under a State child welfare law currently applicable in respect of the children X born … October 1996 and Y born … February 2001, the following orders shall take affect:-
15.1 the children shall live with their mother,
15.2the children shall spend time with their father as agreed between the father and the mother,
15.3 the children shall spend no time with their maternal grandparents;
15.4the mother and father have equal shared parental responsibility for the children;
15.5the maternal grandparents not communicate with the children in any manner or by any means without further order of the court;
15.6the children be permitted, and the mother encourage the children, to contact the maternal grandparents by card or letter at all such times as the children might express a desire to do so.
The Oral Application by the maternal grandmother to stay, pending an appeal, the interim parenting orders and orders with respect to parental responsibility contained in the previous paragraph is dismissed.
IT IS NOTED THAT the current order made under a State child welfare law is due to expire on 11 November 2009.
IT IS FURTHER ORDERED THAT:
The time for the filing of any Notice of Appeal against these Orders shall commence from the date these orders issue from chambers as evidenced on the face of these orders.
A transcript of the proceedings on 22 and 23 October 2009 be prepared and a copy provided free of charge to the parties.
All further documents in any proceedings relating to the children of these proceedings be filed in proceedings BRC5431/2008.
The costs of each party in respect of the proceedings herein are reserved to the final hearing.
The hearing in the Magellan Directions List on 26 February 2010 is vacated.
The parenting proceedings be listed before Registrar Turner for directions at 2.30pm on 4 December 2009 and, upon the Registrar being satisfied that the matter is otherwise ready for final hearing, thereafter listed to 9.00am on 18 December 2009 at the callover of matters ready for final hearing before Justice Murphy.
The hearing before Registrar Turner on 4 December 2009 shall be conducted by telephone.
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.
IT IS RESPECTFULLY DIRECTED THAT
If at all possible, any appeal from any or all of these orders be consolidated with the appeal by the Applicant Grandmother currently listed to be heard by the Full Court in sittings commencing on 18 November 2009 and that any appeal from these orders be heard at the same time as that earlier appeal.
IT IS NOTED THAT
The Independent Children's Lawyer Mr Carter has provided an assurance that neither he, nor any person acting under his control or direction, will facilitate or permit the sending to the grandmother of any pornographic, or inappropriate material of any type such that was allegedly received by her via e-mail.
IT IS FURTHER NOTED THAT
The assurance provided by Mr Carter is given in circumstances where he maintains completely the truth and integrity of affidavits filed by him and members of his staff on that issue, and, further, is provided without any admission whatsoever that the alleged material, or any material of the type alleged, has, at any time, been sent, either intentionally, in inadvertently, from his computer, either as alleged by the grandmother or at all.
IT IS NOTED that publication of this judgment under the pseudonym Coleman & Hindle (Miscellaneous Applications) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 5431 of 2008
FILE NUMBER: BRC 1353 of 2008
| MS COLEMAN |
Applicant Maternal Grandmother
And
| MS HINDLE |
First Respondent Mother
And
| MR HINDLE |
Second Respondent Father
And
| DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES) |
Third Respondent
And
| MR COLEMAN |
Intervenor
EX TEMPORE
REASONS FOR JUDGMENT
A number of Applications in a Case, together with two Applications for Contravention, were filed by the maternal grandmother, Mrs Coleman, over a period of time. Those applications occur in the context of earlier applications decided by me which were the subject of earlier ex tempore reasons.
At least one of the orders made by me to which those reasons relate, and perhaps both, are now the subject of an appeal by the grandmother. The grandmother understands that the appeal will be heard by the Full Court in Brisbane in sittings commencing 18 November 2009.
Ten distinct substantive orders were identified by me and outlined at the commencement of the proceedings.
One of those applications was by the maternal grandfather to intervene in the proceedings. Two such applications, in the form of a “Notice,” were filed; one in respect of an application to intervene in the contravention proceedings, and the other in respect of the substantive parenting proceedings which underlie all of the applications earlier referred to.
The material filed by the maternal grandmother indicates a significant litigation history which sees her, apparently, involved in proceedings before the High Court as long ago as 1988, and proceedings before the Federal Court in 1989.
The instant parenting proceedings can be seen to have a background which includes proceedings brought by the maternal grandmother in the Children’s Court of Queensland, subsequently the District Court of Queensland, and subsequently the State Court of Appeal.
Those proceedings are, I am told by the maternal grandmother, the subject of an application for special leave to the High Court.
The grandmother informs me that the current status of the progress of her application for special leave is unknown. She indicates that a number of the preliminary matters required for applicants for special leave have now been carried out, and her expectation is that the application will be heard in the not too distant future.
Mr Carter is the Independent Children’s Lawyer in the substantive proceedings in this court, and was the Separate Representative in the proceedings in the State courts, those proceedings also involving issues in relation to a child welfare law pursuant to State legislation.
It seemed to me appropriate to deal with the Grandmother’s applications for contravention first, but, because the maternal grandfather had made a distinct application seeking to intervene in those proceedings, I heard and determined that application prior to embarking upon a consideration of the applications for contravention.
The grandmother represents herself in these proceedings, and has done so since their inception before me.
The affidavit material filed by her can, in general terms, be described as discursive, and, in very many respects, extremely difficult to understand (at least to me).
Yet other applications, made by other parties, including an application that the maternal grandmother be declared vexatious, or, in the alternative, provide security for costs before being permitted to proceed further with any application were due to be heard the day following the return date of the applications just referred to.
The wide ranging nature of the applications, the discursive and difficult-to-follow affidavit material, and the self-represented status of the maternal grandmother, have led me to attempt to deal with the applications one by one.
Although, obviously enough, assertions and counter-assertions in respect of each of the separate applications are not easily compartmentalised. I decided, primarily for the above reasons, to make orders and deliver reasons as the proceedings progressed.
I indicated during the course of those proceedings that I would consolidate, in one set of edited reasons, the basis for making each of the orders which I made during the course of the proceedings on each of 22 and 23 October.
I do so for the specific purpose of making it easier for all parties, three of whom (Mr Hindle and each of Mr and Mrs Coleman) represent themselves and also because the grandmother has indicated a wish to appeal some, if not all, of the orders made.
It seems to me that it would be helpful and convenient, in the event of an appeal, for the Full Court to have a consolidated set of reasons (although, of course, it may be necessary for the parties and for the Full Court to look at the transcript lying behind those reasons in due course).
In a similar vein and for similar reasons I propose to deliver one set of orders which, on their face, delineate between each of the respective applications made and the orders made by me in respect of them.
In case it is not plain from what I have just said, I will make it clear that the time period for the institution of any appeal should run from the date that those consolidated orders are published by me as distinct from 22 and 23 October, when they were pronounced.
I will also include in those orders my respectful request that, in the event that a Notice of Appeal is, as foreshadowed by the grandmother, filed in respect of the orders made by me on 22 and/or 23 October, any such appeal, if at all possible, be consolidated to be heard with the appeals already listed in the Full Court sittings commencing 18 November 2009.
What Applications are before the Court ?
There are, it seems, ten applications before the court, in respect of a case in which I first made orders on 29 January of this year, and in respect of the case in which I subsequently delivered two sets of reasons, which has occupied significant court resources since that time.
The first, is an application for contravention by the maternal grandmother. There is, additionally, an Application described as an “Amended Application for Contravention” by the maternal grandmother. Any apparent differences between those two applications will be sorted out by me in a moment.
Next, there is an application by the maternal grandfather, to intervene in the contravention proceedings.
Next, there is an application by the maternal grandmother for a recovery order.
Next, there was an application by the maternal grandmother for a stay of an order made by me on 29 April 2009. I apprehend that it is an application for stay pending appeal.
Next, there is an application by the maternal grandmother that the Independent Children’s Lawyer be “punished” pursuant to section 121 of the Act.
Next, there is an application by the maternal grandmother that the Independent Children’s Lawyer be removed.
Next, there is an application by the maternal grandmother that there be a stay of proceedings which are to be heard tomorrow, that is to say, there is an application for stay before the proceedings have even commenced. As will be seen, this application was reframed as an Application for an adjournment.
Next, there is an application purportedly made seeking an order against the Department of Communities (Child Safety Services) for that Department to provide enrolment information with respect to one of the children the subject of the substantive application.
Next, there is an application by the maternal grandfather to intervene in the substantive proceedings. (I note there are two separate file numbers attached to this matter. One is a contravention file; the other is a parenting file. To the extent that I have made any sense of the material filed, it seems to me that there is an application by the maternal grandfather to intervene in both the contravention proceedings and in the substantive proceedings.)
Finally, there is an application, contained in a Response filed by the maternal grandmother, which, as I understand it, is an application seeking to have all of the respondents declared vexatious. Secondly, it seeks an order that the mother be “charged for perjury”, and thirdly, I think, an application for the mother’s solicitor to be dismissed.
The applications that were to be heard on 22 October are the 10 just referred to. Those applications should commence with the applications for contravention. But, before doing so, given that there is an application for the maternal grandfather to intervene in the contravention proceedings, I will deal with that application first.
Application to Appear by Telephone
I note for the record that the grandmother appears by telephone. She contacted my associate and indicated that she was too ill to be present during the proceedings on that day.
I regard it as an extraordinary step, in the usual course of events, for an applicant for contravention who might, in usual circumstances, subject themselves to cross-examination and may seek to cross-examine other people, to appear in respect of the prosecution of an application for contravention by telephone.
However, in the circumstances of this case, including the receipt of a medical certificate indicating that the grandmother suffers from a medical condition, and the absence of objections from any other party, I granted the grandmother leave to appear by telephone.
Application to Intervene - Contravention Proceedings
The “Notice of Intervention by Person Entitled to Intervene” dated 24 September 2009 is, in these proceedings, to be treated as an application for intervention, and I direct accordingly.
That application, or that notice more accurately, was filed on 24 September. It is accompanied by an affidavit also filed 24 September 2009.
The maternal grandfather asserts that he ought be a party to the proceedings:
…because in the Family Law Act under s 92A subparagraph (e), it says where a person who is alleged to have abused the child or from whom the child is alleged to be at risk of abuse can be a person who is entitled to intervene in the proceedings.
The grandfather went on to suggest that, pursuant to “Rule 6.02(2)(c)” he is also entitled to intervene in the proceedings, and submitted that such intervention could occur without the court’s permission.
I have read carefully the affidavit filed by the paternal grandfather on 24 September 2009, in support of his application to intervene in these contravention proceedings. There is no evidence contained within that affidavit that could justify his intervention in the contravention proceedings. The affidavit does not refer to any matters, the subject of the purported contraventions.
The matter raised by him by reference to section 92A of the Act, deals (like Rule 6.02) with substantive parenting issues relating to the best interests of the children, and has no relevance to the application(s) for contravention, in which he seeks to intervene.
For those reasons, I dismiss the maternal grandfather’s application to intervene in the contravention proceedings.
Application to Intervene - Substantive Proceedings
It seems to me that, for the reasons advanced by the grandfather in respect of the application to intervene in the contravention proceedings, that his application to intervene in the substantive proceedings ought be granted.
I have considered the submissions made on behalf of the Department and by the Independent Children’s Lawyer in opposition to the application to intervene.
It seems to me by reference to section 92A of the Act, and the general principles in respect of proceedings in this court that it is appropriate to grant leave today for the paternal grandfather to intervene in the substantive proceedings.
I grant the application and make orders accordingly.
Contravention Application - filed 14 February 2008
I turn now to the application for contravention filed 14 February 2008.
The mother asserts, that she was not served with the application for contravention, nor the affidavit by the maternal grandmother in support of that application. The maternal grandmother contends that service was affected.
The matter was stood down so as to provide to the mother and her representatives the application and the affidavit referred to and for them to consider same. Having been given the opportunity to consider each, the mother indicated that she was content for the application for contravention, contained in that application, to proceed.
The application, then, can be described as being pursuant to the contravention provisions of the Family Law Act.
The nature of the proceedings are, as I said to the grandmother, a particular form of proceedings in this court and have, as one of the potential ramifications for the parties the subject of the applications, in circumstances where the court considers it appropriate, punishment.
The grandmother, by each of her applications for contravention, seeks “punishment”. It seems to me appropriate that I should therefore be very cautious in ensuring that these proceedings are conducted in a manner consistent with that possible ramification for the respondents to these applications, and, as part and parcel of that, consistent with my obligation to ensure proper process in this court, I should be anxious to ensure that the applications proceed on an appropriate evidentiary basis.
In the application for contravention filed on 14 February 2008, the contravention alleged is as follows:
The respondent, without reasonable excuse, has contravened paragraphs (2,3) of the order under the Family Law Act 1975, dated 21 October 2002 by removing the two children from the care and control of the maternal grandmother without permission and the two children’s whereabouts and safety is still unknown.
It seems to me that the contravention there described contains insufficient particularity by which any respondent to such application could meet the charge made against them.
I would therefore dismiss the application for contravention filed 14 February 2008 on that basis. However, and in any event, the grandmother indicated that the Amended Application for Contravention filed 6 July 2009, incorporates the incident asserted to lie at the heart of that contravention.
In those circumstances, it is not appropriate that two applications for contravention should proceed in respect of the same incident. Also, the application filed 14 February 2008, whilst purporting to relate to the same incident as that to which the Amended Application filed 6 July 2009 refers, contains a different time for the contravention. Both cannot stand, when it is said by the maternal grandmother that they relate to the same incident.
The application filed 14 February 2008 is dismissed.
The Amended Application for Contravention - filed 6 July 2009
(a)Evidentiary Foundations
There are four affidavits, or parts of affidavits, that the grandmother seeks to rely upon with respect to the Amended (6 July 2009) Contravention application. Mr Balzamo, Counsel for the mother, submitted those affidavits, were in large part, “not relevant, confusing and nonsensical”, and failed to deal with the subject matter of the contravention itself.
I refer specifically to the affidavit of the maternal grandmother filed 14 October 2008, which such document the grandmother sought to rely upon with respect to this application.
In my view, paragraphs 3, 4, 5, both paragraphs 7, and paragraphs 9 and 10, of that affidavit are completely irrelevant to the application. I reject the submissions by the applicant maternal grandmother. I order each of those paragraphs be struck out on the basis that they are irrelevant.
I turn now to the affidavit of the respondent mother filed 17 June 2008. The grandmother sought to rely upon paragraphs 8, 11, 16, 17, 32, 36 and 40 of that affidavit in relation to the current application.
I reject the submissions by the applicant maternal grandmother. I rule that paragraphs 8, 11, 16, 17 and 32 are irrelevant, and I strike them out of the evidence in support of the application for contravention.
In respect of paragraph 36, the matters contained there might, perhaps, be seen to be relevant, but it seems to me that, on balance, they are not the subject of any dispute and/or are common ground in these proceedings, and, therefore, on that basis, do not probatively assist the application. I strike that paragraph out. Paragraph 40 of that affidavit remains.
As a result of those rulings, the evidence relied upon by the maternal grandmother in support of her application for contravention, consists of paragraph 40 of an affidavit filed by the mother on 17 June 2008 and paragraphs 1, 2 and 5 of an affidavit filed by her on 14 February 2008.
Mr Selfridge, who appears as counsel for the Department of Communities (Child Safety Services), which is a respondent to these proceedings, indicated that he relies, in support of submissions made with respect to the law, which I had deferred hearing further until the matters of evidence and procedure just referred to were resolved, upon an affidavit of Ms F filed 15 October 2009. Ms F is a Departmental officer.
In circumstances where Mr Selfridge has relied upon that affidavit at the outset of the proceedings, in my view I should permit the self-represented grandmother, to rely upon that affidavit and any of its contents as evidence in support of her application for contravention.
(b) The 19 February 2008 Allegation – Application para 3
Paragraph (3) of the Application alleges that:
On the 19th February 2008, Respondents 2 and 3 with the assistance of Respondent 1, without reasonable excuse or lawful authority did remove the two subject children from the guardianship and care of the Applicant in contravention of a Recovery Order made on the 14th February 2008 by Federal Magistrate Wilson under the Family Law Act 1975.
Ms F’s affidavit reveals, particularly at paragraphs 5 through 14, that, relevantly, on 12 February 2008, a child protection notification was recorded, an application was made for a temporary assessment order and an order was granted in the State Magistrates Court that day. Copies of the orders are exhibited to the affidavit.
Two days later, on 14 February 2008, it is common ground that Wilson FM made a recovery order in favour of the maternal grandmother. That recovery order was, then, made in circumstances where there was an existing state, “child welfare law.” The order placed the subject children, “under the care,” of the Director of the State Department. Each of the two quoted expressions are used in s 69ZK of the Act.
The affidavit goes on to depose to the fact that officers of the Department contacted the grandmother to advise her that the children were in the chief executive’s custody, pursuant to the temporary assessment order to which I have referred. A diary note to that effect is exhibited to the affidavit. Paragraph 14 of that affidavit goes on to depose, “Departmental records indicate that the recovery order made by Wilson FM on 14 February 2008 was never executed.”
It seems from the affidavit filed by Ms F (although, I emphasise, not at all clear or, indeed, otherwise deposed to by the applicant herself), that, on 12 February 2008 the children the subject of these substantive parenting proceedings, were taken into the care of the Department pursuant to an order made that day.
Section 69ZK provides (subject to the exceptions contained in the section) that a court must not make an order under the Family Law Act “in relation to a child” if the child is under the care of a person under a child welfare law. The expression “in relation to a child” is not defined, although the expression “order under this Act affecting children” is, (see s. 4) as is “parenting order” (see s. 4 and 64B(1)).
It seems to me that the expression “in relation to a child” is an expression of wider compass than the defined “order … affecting children”. In my view, a recovery order is caught by the former expression and therefore, is caught by s. 69ZK.
If that is right, then what is clear from Ms F’s affidavit is that the order made by Wilson FM on 14 February 2008 was ultra vires. At that time there was an order made under a child welfare law, within the meaning of section 69ZK, and His Honour did not have jurisdiction to make the order which he made on 14 February 2008.
I hasten to say that, by reason of the highly confused factual circumstances pertaining at that time, it is far from clear that Wilson FM was ever made aware of the existence of the order made pursuant to the child welfare law two days previously. Indeed, it is noted in the affidavit of Ms F that the face of the order made by Wilson FM records that the grandmother was the only party present upon the application for recovery orders.
Later in the proceedings, the grandmother confirmed his Honour’s ignorance of the position, contending that she was not aware of the existence of the State order at the time she appeared before Wilson FM.
However, whether Wilson FM was aware of the order under a state welfare law or not, in my view His Honour lacked the jurisdiction to make the order made on that day. It seems to me that a person cannot be in contravention of an order which is made ultra vires. That is the assertion that is made at paragraph 3 of the application for contravention.
Quite apart from any other matters which might pertain to the contravention asserted at paragraph 3 of the amended application for contravention, the matter just referred to means that it must fail and I dismiss it.
In any event, I have not been made aware of any evidence that anyone did anything (as alleged in paragraph 37) at or about 4.45pm on 19 February or at all on that date.
The contravention asserted at paragraph 3 of the amended application for contravention, filed 6 July 2009, is dismissed.
(c) The 19 February 2008 Allegation – Application para (2)
Paragraph (2) of the Amended Application for Contravention is in these terms:-
On 29 February 2008 respondent two and three, with the assistance of respondent one, without reasonable excuse or lawful authority did remove the two subject children from the guardianship and care of the applicant, in contravention of the orders made 21 October 2002 under the Family Law Act 1975.
It can be seen that it is identical to paragraph (3) save that the contravention is said to be in respect of the Order of 21 October 2002.
The totality of the admissible evidence in support of the contravention is paragraph 40 of the affidavit of the mother, filed 17 June 2008, paragraphs 1, 2 and 5 of the affidavit filed by the maternal grandmother on 14 February 2008, and the affidavit of Ms F.
When that evidence is looked at as a whole, there is in my view no admissible evidence before me that any removal took place by anyone on the day alleged. Accordingly that contravention is dismissed.
Further, while it seems to me that the evidence of Ms F earlier referred to (although not the evidence of the applicant) provides sufficient prima facie evidence of removal by someone on some day (inferentially 12 October 2008), I can see no admissible evidence before me that the mother has contravened any order on any day.
For precisely the same reasons as those just given, it seems to me there is no admissible evidence whatsoever adduced by the maternal grandmother that the first respondent (the father of the children), has done or not done anything that might amount to an alleged contravention as asserted, or at all.
For those reasons, I dismiss the contravention alleged at paragraph (2) of the Amended Application.
(d) Paragraph (1) of the Amended Application
The remaining matter to be determined is the assertion contained at paragraph 1 of the application that:
On 12 February 2008 respondent 2 and 3 with the assistance of respondent 1 without reasonable cause or lawful authority did remove the two subject children from the guardianship and care of the applicant in contravention of orders made on 21 October 2002 under the Family Law Act 1975.
Converting that assertion into named respondents the assertion is that the mother and the Department of Communities (Child Safety Services), as well as four named individuals (each being a Departmental officer), with the assistance of the father, removed the children on the nominated day, that is 12 February 2008, “without reasonable excuse or lawful authority”.
What is clear from the affidavit of Ms F, and in particular paragraphs 5 and following, is that the children came into the care of the Department by reason of actions taken by them.
The placement of the children with the Director of the Department was ordered by (State) Magistrate Baldwin on 12 February 2008. Inferentially - and I say inferentially because it is by no means clear from the affidavit material adduced by the mother in support of the application, but seems clear from the affidavit sworn by Ms F - the children came into the Department's care by reason of that order.
It seems to me that the officers of the Department were plainly acting in accordance with the lawful authority granted (and pursuant to obligations created) under the Child Protection Act 1999 (Qld). It seems plain on the face of the material that the four named individuals were "authorised officers" within the meaning of that State Act and that any "removal" as asserted in the alleged contravention occurred by reason of the lawful authority granted to those people, and the Department, pursuant to state legislation.
Further, and in any event, I have significant doubts whether section 70NAC applies to the Department of Communities (Child Safety Services). That section provides that, in order for a contravention to occur, it must have occurred by "the person" having undertaken the actions or omissions referred to in that section.
Whilst in the law the word "person" can refer to both animate and inanimate persons, an indication that the legislature intended that this particular section is directed towards real persons is given by subparagraph (b) of the section, which is, of course, the only part of the section that can apply to persons who are not actually bound by the terms of the order.
That subparagraph refers to "he or she" perpetrating the actions provided for in the succeeding subparagraphs of that subparagraph. That seems to me to indicate a legislative intent that the section is designed to apply only to real persons as distinct from inanimate persons, such as statutory authorities and corporations.
For that additional reason, the application for contravention insofar as it applies to the Department of Communities (Child Safety Services) must also fail. For those reasons I dismiss paragraph 1 of the Amended Application. Accordingly, then, for the reasons earlier given, the whole of the Amended Application for Contravention filed 6 July 2009 (and each of the three asserted contraventions within it) is dismissed.
Application for “Punishment” of the Independent Children’s Lawyer
The application filed by the maternal grandmother on 16 June 2009, seeks, at paragraph 1, an order that:
The court refers to the Director of Public Prosecutions for action to be taken for punishment of Mr Carter for publishing, or otherwise putting into public record, contrary to section 121(1)(a)(b) and paragraph 3A (i) to(iv) of the Family Law Act, annexure B of the affidavit of the applicant, to whit the Supreme Court of Queensland….
Secondly, an order is sought for Mr Carter’s removal as “legal representative for the two children due to incompetence and inappropriate behaviour.”
The gravamen of the application is contained in the affidavit filed by the grandmother the same day. She also relies upon an affidavit filed more recently. In argument, it became clear that the true argument of the grandmother was that there was a breach of section 121 by reason of Mr Carter having provided documents to the Supreme Court of Queensland in circumstances where they, she alleges, were not used by that court in those proceedings.
Two matters emerge. First, the publication by an Independent Children’s Lawyer to the Supreme Court as alleged is not, in my view, a “dissemination” to, relevantly, “a section of the public” within the meaning of section 121(1).
Secondly, and in the event that I am wrong and publication by Mr Carter to the Supreme Court of Queensland as part of proceedings in that court is, in fact, caught by subsection (1) of that section, in my view, the circumstances of this case are plainly caught by the exception contained in s 121(9)(a) of the Act. The publication was clearly, in my view, a communication to “persons concerned in proceedings in any court.”
The argument by the grandmother is that the documents published to that court by Mr Carter were, in fact, not used in the proceedings. Mr Carter relies upon exhibit DCC5 to the affidavit filed by him on 15 October 2009 in order to contradict that assertion.
In my view, that assertion by the grandmother is, in any event, irrelevant. The section does not require that the documents be used, or that any qualitative assessment be made of the prospective use of the documents. Rather, what is required is that the publication is made for the purpose contained in that subparagraph. In this case, the documents were clearly provided bona fide for the purposes of the Supreme Court proceedings.
In my view, then, even if Mr Carter’s actions are caught by the prohibition in the section, which I doubt, the exception contained in s 121(9)(a) clearly applies.
I dismiss paragraph 1 of that application.
Recovery Order
By an Application in a Case filed on 18 August 2009 the maternal grandmother seeks a recovery order.
The sole evidentiary foundation for that order is contained in an affidavit filed by her on 18 August 2009 and relied upon in support of the application. That affidavit consists of four paragraphs.
I have no idea how it is said that those four paragraphs are relevant to my making a recovery order in this case.
Further, and in any event, the uncontradicted facts before me are that the two children almost 13 and 8 are, consequent upon earlier intervention by the Department of Communities (Child Safety Services), and a court order made in a State court under a “child welfare law”, in the care of the mother.
The Department of Communities (Child Safety Services) consents to substantive proceedings occurring in this court on the basis that the children are currently in that placement.
Mr Selfridge, who appears as counsel for the Department of Communities (Child Safety Services), this morning informs the court that, if this court contemplated placing the children in the care of the maternal grandmother (consequent upon the cessation of the State order), the Department would take action under State legislation by seeking to continue the State order.
Further, and in any event, the children have now been in the care of the mother, on any view of the uncontradicted evidence, for a considerable period of time. Whilst perhaps not strictly applicable to an application for a recovery order, if there was a proper foundation for it which, in this case there is not, "best interests considerations" nevertheless play a part here and there is no evidence before me which would remotely satisfy me that it is in the best interests of these children on an interim basis to make the order sought by the applicant grandmother.
The application in a case then filed on 18 August 2009 seeking a recovery order is dismissed.
Application for Stay – Orders of 29.4.09
By an application filed on 2 June 2009 the maternal grandmother seeks an order staying the operation of orders made by me on 29 April 2009. I am told that a Notice of Appeal has been filed against those orders and is due to be heard by the Full Court in Brisbane in sittings commencing on 18 November.
The principles in relation to stay pending an appeal are well known. The evidence filed by the maternal grandmother contains, in my view, no basis upon which an order for stay should be made.
Further, and in any event, an important consideration in respect of whether a stay pending an appeal ought be granted is the merits of the appeal. I note that the appeal here is in respect of interim procedural orders made by me. Particular considerations apply to appeals from interlocutory orders. By reason of that fact alone the appeal enjoys limited prospects of success.
Taking all of those matters into account, the Application in a Case filed on 2 June 2009 seeking a stay of my orders of 29.4.09 pending appeal is dismissed.
Application Seeking Information from the Department
I now turn to an application filed on 6 August 2009 by the maternal grandmother seeking an order that:
The third respondent [i.e. the Department of Communities (Child Safety Services)] supply to the court the enrolment information relating to the eldest subject child.
As emerged from oral submissions made by the maternal grandmother the order actually sought by her is an order in narrower terms; an order based, she says, on longstanding cultural/religious considerations as to whether the children are attending a religious school or a state school.
Submissions are made on behalf of both the mother and the Department, supported by the Independent Children’s Lawyer (although not making any specific submissions in this respect), that the application ought be refused.
Reliance is placed, in part, upon a report prepared recently by Mr M who is a social worker on instructions from the independent children's lawyer. The grandmother asserts that she did not receive a copy of Mr M’s most recent report. There is a dispute about whether the grandmother ought reasonably to have had the report given that it was e-mailed to her, but I need not descend into the details of that as it is not relevant for the instant specific purpose. I put into place directions to ensure she received it at the end of the first of the two days of hearing that these applications occupied.
I specifically record that I have not, for the purposes of reaching this decision [which was heard and determined on the first of the two days of hearing] had regard to that report.
Mr Selfridge submits that there is a significant risk which attends the dissemination of the information sought by the grandmother. Mr Balzamo, counsel for the mother, supports that submission.
Although I have not had access to Mr M’s most recent report, in light of the fact that the grandmother says that she did not receive it, I nevertheless am cognisant of, and take account of, the long and tortuous history of this matter and the plethora of factual allegations and counter allegations asserted by both the maternal grandmother and the parents.
I have, as I indicated earlier, dealt with this matter on many occasions since January of this year, and have delivered at least two earlier sets of ex tempore reasons in and about the facts and circumstances of this complex case. In circumstances where, at some point - if the stream of interim applications in this matter would only cease - the matter will soon proceed to a final hearing, it seems to me entirely inappropriate to arrive at a decision about the issue the subject of this application.
The resolution of it requires findings directly relevant to the children's best interests. Mr Selfridge submits that, potentially, there is a risk to the children associated with time between, or contact or communication between, the grandmother and the children. That assertion, together with all other aspects of the children’s best interests, requires a trial and the findings emanating from it.
The restrictions inherent in interim decisions in this court are well known and have been commented upon by earlier decisions of the Full Court. Not infrequently, it is necessary to make orders within those confined circumstances by reason of the circumstances then pertaining. But, in my opinion, this is not such a case. I can see no evidence which persuades me that such a decision needs to be made ahead of a trial and I am not be prepared to make the order sought by the maternal grandmother on an interim basis.
The application then for the order sought at paragraph 2 of the application filed on 6 August 2009 is dismissed.
The Proceedings on 23 October
Oral Application - Disqualification for Bias
During the course of the hearing yesterday of multiple applications brought by the maternal grandmother, she indicated that she wished me to disqualify myself for bias. It was necessary for me to continue to hear the matters the subject of the applications, but I indicated to the grandmother that I had not forgotten about the fact that – as I apprehended it – she sought to make an oral application that I should disqualify myself for bias.
In the event, a number of the applications due to be heard yesterday were adjourned until today. At the commencement of the proceedings today, I reminded the grandmother of the fact that she had indicated that she may wish to make an application in those terms. She confirmed that she wished to make an oral application for my disqualification.
No objection was taken by anyone at the bar table to an oral application being made and I gave leave to the grandmother to that effect.
The grandmother made submissions over a significant period of time. I confess to being unable to fully understand the gravamen of those submissions. As I said to the grandmother during the hearing, a judge is not biased merely because he or she disagrees with what is being submitted.
To the best that I can ascertain it, the grandmother’s submission appears to be that I refused an application for leave to intervene by the paternal grandfather in respect of the contravention proceedings but granted an application for intervention in respect of the substantive parenting proceedings, and, as a result of the order made refusing intervention in the contravention proceedings, that somehow evidence relevant to the contravention proceedings was not before the court and, therefore, the grandmother was treated unfairly.
The tests for disqualification on the basis of apprehended bias, or, indeed, actual bias, are well known and need not be repeated.
It seems to me that all of the matters raised by the grandmother, including those matters raised in what might perhaps more accurately be described as conversation between her and the Bench yesterday, are matters for appeal, rather than the subject of the instant application.
Further, and in any event, it seems to me that none of the matters raised by the grandmother are matters which would cause a reasonably informed objective observer to the proceedings to consider that I had brought other than an appropriately open and objective mind to the adjudication of the proceedings before me.
The application is refused.
Application for Removal of the Independent Children’s Lawyer
Paragraph 1 of the Application in a Case filed on 16 June 2009 (seeking an order that the ICL be “punished”) has been the subject of an earlier ruling and reasons by me. Paragraph 2 of that same application was yesterday adjourned by me to be heard today.
At the outset, the grandmother indicated that she sought an adjournment of that application by reason of the filing of material at a time such that she says she has not had the opportunity to properly read and absorb it, and I gather from comments made earlier by the grandfather, who, yesterday, was given leave to intervene in the substantive proceedings, that he would support that application for adjournment.
Ultimately, as the submissions and argument proceeded I pointed out to the grandmother that Mr Carter, who is an experienced practitioner and experienced Independent Children’s Lawyer in this court, and two members of his staff had each sworn on oath that they were not responsible, either intentionally, or, to the best of their knowledge, inadvertently, in sending images which I have conveniently called “pornographic” to the grandmother.
Mr Carter had sought to rely upon affidavits from two experts about the possibility (or otherwise) of those images emanating from his computer.
As the argument and discussion proceeded, the grandmother indicated - if I may respectfully say so, intelligently and sensibly – that, if Mr Carter was to give an assurance to the court that he would do everything within his power (which includes the management of his staff) to ensure that no such images were communicated to the grandmother, then she would be content for that to bring the order sought in paragraph 1 of the application to an end.
Mr Carter gave the assurance in open court in extensive terms, which the grandmother heard. And the grandmother indicated that she accepted that assurance.
I am at pains to emphasise that truth and integrity of the sworn evidence of Mr Carter and his staff is maintained by him and the assurance, although given freely and in expansive terms, is given without the slightest admission of any wrongdoing or any intentional – or inadvertent – behaviour causing, or permitting or facilitating the dissemination of the alleged material.
On that basis, I will make a notation in the formal orders made by me recording the fact that Mr Carter has given that assurance, and on that basis I will dismiss paragraph 1 of the application filed on 16 June 2009.
Application for Stay of Current Proceedings Pending High Court Appeal
On 6 August 2009, the grandmother filed an application in a case seeking, relevantly, two orders. The second (seeking “information from the Department”) was dealt with yesterday and my reasons are recorded earlier.
The other order sought in that application is
That the court places a “stay of proceedings” on the interim hearing of the respondent’s application in support of interim custody orders for the second respondent on 23 October 2009 to preserve the integrity of both the hearing of appeal […] in the High Court of Australia, and also of N42 of 2009 in the Full Court of the Family Court of Australia.
By way of background, it needs to be explained that the grandmother has filed an application for special leave to the High Court of Australia. In broad terms (as the grandmother outlined it), that application is as a result of a path of litigation commenced in the Children’s Court of Queensland, proceeding to the District Court of Queensland and thereafter to that State’s Court of Appeal. It is the decision of the Court of Appeal, I gather, that is the subject of the application for special leave.
As the grandmother explains it, the application for special leave has at its heart an assertion that actions taken under state law by the Department of Communities (Child Safety Services), and an order obtained by that Department pursuant to state legislation, are invalid.
The grandmother has filed an appeal in the Full Court of this court against orders earlier made by me on 29 April 2009. The orders made by me on that occasion, for reasons given by me at that time, dismissed two applications in a case filed by the maternal grandmother.
The grandmother’s application, then, is to “stay” the proceedings due to be heard by me today emanating from an Application in a Case filed by the mother for interim parenting orders.
It seems to me that the application, in its current form, is incompetent in that the court does not have power to grant a “stay” in the circumstances just described. Bearing in mind the grandmother’s self-represented status, and there being no objection by any of the parties, I “reframed” that application on the mother’s behalf so as to treat it as an application for an adjournment of the interim parenting proceedings, the basis for which is the pendency of the appeal to which I have just referred (and, perhaps, the appeal to the Full Court of this court from earlier orders made by me).
In support of the application for adjournment, the grandmother submits that an adjournment is required because I do not have power to deal with the interim parenting application by reason of section 69ZK(3) of the Act.
That section, it will be observed, provides for the adjournment of proceedings and the grandmother relies on that subsection as founding her application to adjourn the mother’s application for interim parenting orders. She argues that, because the High Court is seized of an appeal in respect of what was originally an order made under state welfare law, this court does not have jurisdiction to make the orders sought.
It seems to me that that submission ignores s 69ZK(1)(a). The application of the mother is for interim parenting orders to come into effect when the children the subject of the orders cease to be under the care and control of the Department, as referred to in that section.
As was made plain yesterday by Mr Selfridge, counsel for the Department, these proceedings are being conducted on the basis that the Department will likely take action in respect of the State law in November upon the making of orders by this court. (It is anticipated that the Department will not seek to renew the order under State law when it “lapses” on 11 November). The order, then, sought by the mother is, in fact, an order which I have jurisdiction to make, as s 69ZK(1) makes clear.
The adjournment provision in s 69ZK(3) is, in my view, in any event designed to cover a situation different to that contended for by the grandmother. The section is, as I read it, intended to cover the situation where this court is seized of proceedings but receives evidence that proceedings are about to be taken under State legislation, the effect of which would be to render the proceedings in the Family Court nugatory.
Further, and in any event, it needs to be observed that the success of an application for special leave and, ultimately, a successful appeal to the High Court of Australia, would be to declare, as I gather it, the actions of the Department and/or orders made under State legislation invalid. If that was to be successful, then proceedings properly instituted in this court would have no jurisdictional impediment. This court would be able to deal with all issues relating to parenting proceedings, there being no, then, valid order with respect to state legislation.
Further, it seems to me that the appeal currently pending in the Full Court of this court, due, I gather, to be heard on 18 November, is in respect of orders made by me dismissing the applications in a case earlier filed by the mother. I can see no evidence, and no submissions have been addressed to me, which would indicate that the continuation or, rather, the interim parenting proceedings going ahead would in any way impede that appellate process.
For those reasons, the application of the grandmother is dismissed.
Application By Mother – Frivolous or Vexatious Proceedings
On 6 October 2009 an Application in a Case was filed by the mother which, relevantly, seeks an order that the grandmother be “declared vexatious” and that an order be made that she be prohibited from instituting further proceedings, save for an appeal, without first obtaining leave. A third order is sought (presumably in the alternative, although not stated to be so) that the grandmother deposit security prior to further proceeding.
The grandmother applies for an adjournment of that application. She says in support of that application that she wishes to “produce further particulars” in respect of things said, in particular, by Mr Selfridge during the course of proceedings yesterday.
I cannot see how any of the matters in respect of which the grandmother says that she needs to seek further particulars would be relevant to meeting the application in the interlocutory circumstances in which it proceeds to be determined.
The grandmother says that she needs to “produce evidence with respect to what was said” on an earlier occasion. Again, I cannot see that the matters referred to by the grandmother are relevant to the application I need to determine in the interlocutory circumstances in which I determine it. In any event, it is plain that the grandmother received the application and supporting affidavit on 6 October. It is now 23 October. The affidavit in support of the application essentially deposes to historical matters such as the nature and number of applications, something with which the grandmother is well familiar.
Finally, the grandmother’s opportunity to read and consider the application and affidavit in support was sufficient so as to permit her to arrive at a decision to herself bring an application, by way of response, that the mother be “declared vexatious”. I am not persuaded that the grandmother suffers any disadvantage, or that there is any injustice in the application just referred to proceeding before me today. To the best I can ascertain from what the grandmother submits in respect of the adjournment, I am not satisfied that any of the matters raised by her would be germane to her properly meeting the application sought against her.
For those reasons, I refuse the application for adjournment.
The mother seeks an order that the second respondent “is a vexatious litigant.” One assumes that an order in those terms is, in effect, an order for a declaration. It needs to be observed initially, that, although the expression, “declared a vexatious litigant,” is used frequently, that is not the power given to the court by the Act. The court’s powers are given, specifically, under section 118 of the Act, and, perhaps, exist as part of the court’s inherent power to control its own litigation, so as to prevent the continuation of proceedings which are vexatious or frivolous. That inherent power is grounded in the overall requirement of a court, in effecting justice in and about the matters within its jurisdiction, to ensure that its processes are not abused.
Another order sought by the mother in the application is an order “pursuant to Rule 11.04,” and (I gather in the alternative) an order “pursuant to Rule 22.47.” Respectively, orders are sought that the maternal grandmother be prohibited, without first obtaining leave of the court, from instituting further proceedings under the Act except in respect of an appeal. The order sought in respect of Rule 22.47 is an order that the grandmother provides security for costs before further proceedings.
Whether by the application of s. 118, or pursuant to the court’s inherent power, regard must be had to the nature of the remedy actually sought. Section 118 provides that if the court is satisfied “at any stage of the proceedings,” that “the proceedings are frivolous or vexatious,” the court may dismiss the proceedings, or make such other order as to costs.
It is plain that it is “the proceedings” which must be frivolous or vexatious. Accordingly, it is important to draw a distinction between a number of applications that may or may not be brought by an applicant. That is an important consideration when, as here, the sheer number of applications brought by a party are relied upon by another party in support of applications of this type.
In this case, significant reliance is placed upon the fact that the grandmother has brought some 23 applications, including applications in the Children’s Court of Queensland, the State District and Supreme Courts of Queensland, that State’s Court of Appeal, applications under the Domestic Violence Legislation in the Queensland Magistrates Court, together with applications in this court, including numerous Applications in a Case to which I made reference yesterday. All are set out at paragraph 5 of the affidavit filed by the mother on 6 October 2009.
Mr Balzamo, who appears as counsel for the mother, refers to the well known decision in Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 and the discussion of the principles in relation to vexatious and frivolous proceedings there contained.
Reference to that decision makes it plain, in my view, that central to successful applications of this type is what might be described as “a lack of bona fides” on the part of the applicant. That notion is underlined by reference to the other authority referred to by Mr Balzamo, where the notion of vexatiousness was discussed. Courts have used expressions such as “obviously untenable,” or “utterly hopeless” to describe proceedings coming within the ambit of vexatiousness or frivolousness.
In that context, Mr Balzamo submitted that the number of applications, most of which have failed, are indicative of the substantive proceedings in this court being frivolous or vexatious. Reference was made to the fact that the overwhelming majority of the applications made by the grandmother, including appeals, had been dismissed, or otherwise held to be without foundation. Mr Balzamo submits that the current proceedings are an “obsessive pursuit” by the grandmother of a campaign started many years ago in respect of these children, and all of the applications brought by her and the submissions made by her, are an attempt to “re-litigate the whole matter.”
In other submissions in support of the application, Mr Selfridge, for the Department made reference to the significant costs associated with the Department, meeting various proceedings brought by the grandmother. In that respect, it is to be noted that the Department has been a respondent to those proceedings in all of the applications in all jurisdictions, save for the domestic violence proceedings, earlier referred to.
In my view, the question which needs to be asked is, are the current proceedings attended by a lack of bona fides on the part of the grandmother, or can they be described as patently lacking in substance or “utterly hopeless” or some such similar epithet. It seems to me that proceedings designed to prevent the continuation of frivolous or vexatious proceedings, can be viewed as a subset of the prevention of the abuse of the court’s process – proceedings which, as it were, mock or pay scant regard to the important democratic right to pursue legal remedies in properly-constituted courts.
That right underpins an important corollary to arguments in support of any such application. In this democracy, parties have a right to pursue bona fide legal remedies by reference to the courts. That bona fide right extends across all such causes of action as might be reasonably available to that person. The fact that those various causes of actions are, as a result of Australia’s federal system, confined in some respects to State jurisdiction, and, in other respects, to federal jurisdiction, and in yet other respects to specific courts within State jurisdiction, might be the cause of legitimate frustration, but it does not alter that fundamental right enjoyed by all citizens of this country.
It seems to me that the considerations just referred to are powerfully important in considering the granting of the sort of orders sought by the mother. To deny – or significantly restrict – the right of access to the courts of this country, is a very serious matter, and should not be entertained except on very strong evidence. It is, in my view, partly at least, for that reason why courts of high authority have emphasised the necessity to establish lack of bona fides or futility or absurdity, or matters of that type, prior to making such orders.
The sheer number of applications brought by the grandmother, together with the nature of those applications, and the fact that those applications frequently involve material which, as I said in my reasons given earlier, is frequently discursive and often irrelevant to the specific issue, the nature of the application, might impact upon whether proceedings are frivolous or vexatious.
But, in my view, great care should attend a finding to that effect, in circumstances where, however imprecisely they might be expressed (by a self-represented litigant), are, nevertheless, an expression of a sincere pursuit of a legitimate “cause of action” and what that person perceives to be justice.
In this particular case, the word, “proceedings” as referred to in s. 118 of the Act, must, in my view, refer to the substantive proceedings for parenting orders that are currently the subject of management by this court, and will, hopefully, at the end of these multitudinous applications, be the subject of further management by the court.
Importantly, as it seems to me, a substratum of accepted fact in respect of those substantive proceedings, is that the two subject children, who are now aged about 14 and 8, were in the care of the maternal grandmother from about 2002 until their removal by the Department of Communities (Child Safety Services) in 2008.
The picture thereafter becomes, in a litigation sense, incredibly complex by reason of assertions made by the grandmother that the removal of the children by the Department is somehow illegal or invalid. I gather that is the substance of applications that have now been made to the Children’s Court, the District Court, Court of Appeal of Queensland and also the High Court of Australia.
Moreover, those very same allegations appear also to have been the subject of a separate application made by the grandmother to the Supreme Court of New South Wales. Reasons for judgment of that court are annexed to the mother’s affidavit.
The substantive proceedings in this court will be about the best interests of those two children. In circumstances where an uncontradicted substratum of fact in those substantive proceedings is that the two children lived with the grandmother for a period of some six years prior to the removal by the Department, is, it seems to me, a highly relevant matter in respect of the ultimate decision to be made at a trial about their best interests. Equally, the fact that these children were removed by the Department and the circumstances in which they were removed, would, I would imagine, also be a very significant matter in those ultimate parenting proceedings.
The grandmother has been the cause of significant, understandable frustration being expressed by the Independent Children’s Lawyer, officers of this court who have had to deal with her, and indeed, myself, resulting partly from the manner in which the grandmother presents her case and conducts herself in and about the proceedings.
Having said that, I have no doubt that, right or wrong, justified or not (each of which will be undoubtedly significant matters to be determined at a trial) the grandmother is sincere in her perceptions of what is in the children’s best interests and in the pursuit of what she considers to be appropriate remedies. Whether or not, ultimately, a court will agree with her, is an entirely different matter altogether.
However, it seems to me that those very same considerations point against the conclusion that “the proceedings” are frivolous or vexatious.
The mother’s application in that respect is dismissed.
In a Response filed by the Independent Children’s Lawyer, an order is sought that “if [the grandmother] is not deemed to be vexatious, then [the grandmother] be ordered to pay into court the amount of $10,000 within 14 days” etcetera.
For the reasons just given, I also dismiss that paragraph of the Response.
Vexatious Proceedings – Maternal Grandmother’s Application
In a response filed by the grandmother on 21 October 2009 she seeks orders, among others, that “the application of [the mother] be declared an abuse of the court’s process”, and similar orders in respect of vexatiousness, and that the application “be struck out as incompetent and without merit”.
For reasons identical to those just given, the application for each and all of those orders is dismissed.
These reasons should reflect that the grandmother hung up at the commencement of my giving of oral reasons. That occurred upon my notifying her that I did not wish to hear from her further, only for her to again interrupt the giving of these reasons by calling this court “a kangaroo court” and me “corrupt”. She did not, it seems, participate further by being on the telephone line.
Accordingly, the grandmother was not heard in support of an order sought by her in the response dated 21 October 2009 that “an order of the court that the second respondent/biological mother be brought before the court for perjury in the swearing of the affidavit of 5 October 2009”.
Perjury is a matter for State criminal authorities. I have no power to make the order sought, and it is incompetent. I strike it out.
To the extent that that order might be reframed as an order that I should refer the papers to the relevant authorities, there is, in my view, no evidentiary foundation that would support such an application being made. Each and all of the applications before the court, whether at the instance of the grandmother or the mother, have been heard by the court on an interim basis. They have thus been heard in circumstances where the point has been made to all parties, including the grandmother, that the proceedings are, by their nature, such that findings about credibility cannot be made in the absence of compelling evidence or admissions to that effect.
Finally, an order is sought at paragraph 6 of the response filed on 21 October 2009 that:-
An order of the court that the legal representative for the second respondent/biological mother, Mrs DA Hewitt, be brought before the court for contempt of court for allowing her client to falsely swear an affidavit of 5 October 2009 and then witness that affidavit.
Again, the application is incompetent, and for the reasons just indicated, that application, too, will be dismissed.
Application for Interim Parenting Orders
(a) Application for Adjournment
The grandmother submits that she received the most recent report from Mr M only last night by email, and that she has been suffering from some form of infection and has not had a proper opportunity to examine that report.
The court was sent, on 20 October 2009, a document from the grandmother which was a two-sentence medical report from the S Surgery under the hand of Dr E. That medical certificate says:
This person is unfit to work or travel from Wednesday, 14 October 2009 to Friday, 23 October 2009 due to medical illness. She has had a recent lung biopsy and then chest infection. Is currently on antibiotic treatment.
I have had the opportunity to hear the grandmother conduct herself in these proceedings for the whole of yesterday and most of today. I am not persuaded that she is in any way disadvantaged by reason of that medical condition.
Secondly, the grandmother says, specifically in respect of Mr M, that she is disadvantaged by being unable to put certain things to him and prepare facts for that purpose. The disadvantage is said to derive from only having overnight to read and consider his most recent report.
As I have said in court many times on occasions when the grandmother has been present, applications for interim order occur in a particular setting. They are not proceedings in which findings about contested factual matters can be made.
The restrictions inherent in interim proceedings, and the ability of courts to make orders notwithstanding that the proceedings are truncated in nature, have been the subject of decisions of the Full Court, most notably C & C (1996) FLC 92-651 and, in the post-Reform Act setting, the decision of the Full Court in Goode & Goode [2006] FamCA 1346.
Relevantly, the nature of the hearing is a curtailed one and inherent in it is a restriction on the capacity of the court to make findings of fact save in very limited circumstances. Indeed, the court is directed to less contentious facts, issues not in dispute, existing care arrangements and current circumstances and the parties’ respective proposals.
The grandmother submits, in support of her application for an adjournment, that it is necessary for her to, “supply a transcript of a taped interview with Mr [M].” I cannot see how that can be relevant save in circumstances where the grandmother would make submissions as to credibility or findings of fact in respect of the evidence in Mr M (and perhaps others).
Moreover, she herself says, during discussions on this topic, that Mr M’s report is, “substantially a carry over of his affidavit from last year.” Accordingly, by her own words, the grandmother acknowledges that the matters discussed by Mr M in his most recent report, are, largely, a repetition of matters – or a further amplification of matters - outlined by him in a report which is now some twelve months old.
Furthermore, the later report from Mr M has been compiled in circumstances where the grandmother’s refusal, or failure, to attend at interviews with Mr M, has been the subject of earlier interim proceedings decided upon by me and the subject of earlier material.
I am not persuaded that any injustice is caused to the grandmother by the hearing of interim proceedings in respect of the residential placement, and other parenting arrangements, for the two children pending the trial of this action.
Accordingly her oral application for an adjournment is refused.
I have already delivered reasons for judgment in respect of a number of applications - in fact, in respect of a plethora of applications, both written and oral - that were dealt with on both the 22nd and 23rd of October. I have earlier indicated that, for ease of reference for each of the parties, including three who are self-represented, and for ease of reference for the Full Court in circumstances where the grandmother indicates that it is highly likely she will appeal all of the orders made by me both yesterday and today, that I would produce a set of reasons which brought together all of the reasons I have delivered as these proceedings have unfolded.
I record for clarity that I am here doing precisely the same in respect of my reasons in respect of the applications which have proceeded on 23 October 2009.
X is a child born in October 1996. He is all but 13. His brother, Y, was born in February 2001, and is 8.
The context in which the current application for interim parenting orders occurs can be seen in the earlier decisions given by me in respect of these proceedings. The substantive proceedings relate to parenting orders in respect of both of the boys to whom I have just made reference. Procedural orders for the final hearing of that matter are yet to be made, but will be made by me at the conclusion of these proceedings.
Amidst the extraordinary number of factual allegations and counter-allegations made by or on behalf of each of the parties, what is abundantly plain to me is that these proceedings need to be heard and determined at the earliest possible time, so that this litigation involving these two still young children can mercifully be brought to an end.
In 2002, an order was made by a local court in New South Wales exercising federal jurisdiction. That order provided, in broad terms, that the children live with the maternal grandmother. That order, prevailed, it seems, until an order was made under Queensland State Law in February 2008.
It is asserted by the paternal grandfather, in submissions made by him, that from 2001 (which is to be noted is the year in which Y was born), until the events of February 2008, the children spent about 90 per cent of their time in the care of their maternal grandparents.
It is not necessary in the current proceedings to make a definitive finding about that assertion, but, on any view of the evidence, it seems plain that the children spent the significant majority of that period in their care.
On 12 February 2008, the Queensland Department of Communities (Child Safety Services) took action in respect of the children. The facts and circumstances surrounding the taking of action by that Department are the subject of an extraordinary number of factual (and legal) assertions and counter-assertions. The events of that time, and the events following from them, have, in turn, been the subject of a large amount of litigation. That litigation has extended across four State Courts, exercising State jurisdiction, and the Federal Magistrates Court and this court, exercising Federal jurisdiction.
As a result of the actions taken by the Department in February 2008, a Temporary Assessment Order was made. The effect of that order was, as far as this court is concerned, to bring into operation the provisions of section 69ZK of the Act.
In short, because that order resulted in the children coming “under the care (however described) of a person under a child welfare law” within the meaning of section 69ZK of the Act, neither this court, nor the Federal Magistrates Court, had jurisdiction to entertain parenting proceedings unless, relevantly, the Director gave written consent to that occurring, or in the alternative, the proceedings were, in respect of orders expressed on their face as coming into effect upon the cessation of the child welfare order.
In circumstances which, again, remain unclear and which, again, are, it seems, the subject of competing factual assertions and counter-assertions, it seems that Wilson FM on 14 February 2008 purported to make a recovery order in respect of the children. It seems that, at that hearing, the maternal grandmother was the only party who was present or represented. The circumstances in which that occurred remain unclear and are beyond the scope of findings in the instant proceedings.
Nevertheless, it was in those circumstances that Federal Magistrate Wilson purported to make the orders that his Honour did. I use the word “purported” because, by reason of the Temporary Assessment Order that had been made two days previously, His Honour had no jurisdiction to make the orders which His Honour made as set out earlier in these Reasons. I hasten to add that it seems abundantly clear that the Federal Magistrate was not aware of the orders that had been made under the State child welfare law two days previously.
On 22 February 2008, a further order was made under State law in a State Court, for a court assessment of the children. It needs to be observed that, consequent upon the actions taken by the Department, and its assessment and the orders obtained by it, the children were placed into the physical care of the mother, albeit that their temporary “guardianship” was, by order, vested in the Director of the Department.
The children have remained in the physical care of the mother, by reason of the Department’s decisions in that respect since that time.
On 11 November 2008 a Child Protection Order was made, under a child welfare law within the meaning of section 69ZK of the Act, that gave the Director of Child Safety the “guardianship” of these two children.
Consequent upon that order, the Department confirmed its decision to have the children remain in the day-to-day care of the mother. Again, that situation has pertained since that time.
I add that, during the process of assessment and the placements by the Department just referred to, the Department had, I gather through the agency in part, at least, of the mother, also permitted the father, Mr Hindle, to spend time with the children in accordance with arrangements approved by the Department.
All of the evidence before me (including that adduced by the father, who appears in these proceedings on his own behalf), and the mother, would indicate that, during that period of time - and at the present time - co-parenting arrangements are working successfully as between the mother and father.
In particular, it seems that the mother and father have been able between themselves, to make arrangements for the children to spend “quality time”, as the father himself expressed it, with their father. These arrangements have occurred by consent and mutual cooperation between the mother and the father. That is to their credit. It is important that the children have the opportunity to see the people who have the co-parenting responsibilities for them being able to agree upon arrangements which they consider to be in their best interests and to witness and experience those arrangements being put into effect by agreement between them.
The position as at today is that the Child Protection Order made on 11 November 2008, expires by reason of the provisions of the Child Protection Act 1999 (Qld) on 11 November 2009 unless such order is extended.
It is submitted on behalf of the Department and is abundantly plain on the evidence before me, that the Department, has conducted, pursuant to statutory responsibilities enshrined in the Act to which I have just made reference, continual assessment of this family, including the needs of the two children and any risks associated with the placement arranged by the Department.
It is, again, abundantly clear on any view of the evidence that the assessment just referred to has produced a conclusion, continuous during the period of time that the State child welfare law has applied, that not only are the children not at risk in the care of their mother or, indeed, from seeing their father under the arrangements that I have just described, but, as Mr Selfridge, counsel for the Department submitted, they have, in fact, “thrived” in the care of the mother.
The position, then, in respect of this interim application is that the child welfare order will expire in a few weeks time. The application by the mother is that the children live with her and spend time as agreed between she and the father upon the expiration of that order.
I sought that Mr Selfridge obtain specific instructions as to the Department’s position in the event that the court was to make an order that the children should live with the maternal grandparents, or spend significant and substantial time with them.
Whilst at pains to submit that in no way was the Department, as it were, “holding a gun” to the head of the court, Mr Selfridge indicated that his instructions were that the Department’s current position was that, in the event that the court was minded to make orders that the children would live with, or spend substantial or significant time with, the maternal grandparents, they would seek to extend the order pursuant to State legislation.
The reason for that position, emerging from the affidavit evidence filed on behalf of the Department in these proceedings, is that the Department has assessed that the children are at risk of harm in the care of their grandparents.
Whether that assessment is correct or not is, ultimately, a question for the trial of this action. Nevertheless, that assessment has been made by responsible officers of the Department who are specifically charged with onerous statutory responsibilities pursuant to State legislation, those responsibilities exacerbated by the fact that, by reason of a State order, the Director of that Department has guardianship responsibilities for these two relatively young children.
It seems to me appropriate that I should place weight, in these interim proceedings, on that assessment, or, more accurately, on those assessments conducted continuously now by the Department over a period of some 18 months or so.
I made reference earlier in these reasons to the other applications with which I’ve dealt and also to the nature of interim proceedings.
The Full Court in Goode v Goode made it clear that, notwithstanding the truncated nature of the proceedings and the inability of the court to make findings where facts are significantly disputed, nevertheless, the court must, doing the best it can, weigh and consider all of the matters which the legislation mandates as relevant to a decision about the children’s best interests.
In particular, the obligation of the court is to weigh, and arrive at conclusions, albeit in the context just described, about the Objects and Principles enshrined in the legislation as well as the statutory Considerations contained in section 60CC.
It might be seen that two clear tenants of legislative intention emerged. First, it is intended that both parents should have an ongoing role in the co-parenting and co-nurturing of their children that is of value to the children. Secondly, that tenant and the interference by a court in any agreed co-nurturing arrangements or arrangements about which parents do not agree, should, in all cases, be governed by a consideration of the best interests of the children specific to their particular circumstances.
The Act makes it abundantly clear, and it reminds the court numerous times in many different places within the legislation, that the essential exercise in the making of parenting orders is to arrive at ultimate findings directed to the specific children’s best interests relevant to their specific circumstances.
Findings as to best interests underpin each of the specific matters to which the court is directed by the Act. Examples are contained in section 60B(1)(a), section 60C(a), section 61D(a)(iv), section 65DAA(1)(a), section 65DAA(2)(c) and Note 1 to each of those latter two sections.
By way of corollary, the assessment by a court of the best interests of children specific to their particular circumstances is to be conducted within the statutory objective of maximising parental involvement consistent with that assessment of best interests. Ascertaining best interests by reference to the Act’s signposts and, in particular, section 60CC, must bear that consideration specifically in mind.
In the context of this case, and by reason of the submissions made on behalf of at least some of the parties to this case, that there is an existing situation of the children living with their mother which has been in place now for some 18 months and the court would be reluctant to upset that situation.
I specifically record that I am aware of, and bound by, the decision of the Full Court in Dicosta v Dicosta [2008] FamCAFC 161 and, in particular, what the Full Court there said with respect to what is sometimes called “the status quo”, and the relevance in the context of the current legislative provisions, of change of circumstances, separation from a parent and the like. I refer, in particular, to paragraphs 34 and 35 of that decision of the Full Court.
All parties save for the respondents, Mr and Mrs Coleman, agree on the orders that this court should make.
Mr Coleman was joined to these substantive proceedings as a party, by reason of an order made on 22 October by me. He was not a respondent to the application at the time it was filed, nor at any earlier time prior to 22 October.
Notwithstanding that consideration, I considered it appropriate in the interests of natural justice to allow him the opportunity to make submissions with respect to his position with respect to the best interests of the children, and he did so.
Mr Selfridge, counsel for the Department, in the context of a submission, earlier referred to that the children were “thriving” in the care of their mother, submitted that nothing had changed with respect to the Departmental attitude which erstwhile had been reflected by their assessments of risk and the placement of the children earlier referred to.
Mr Carter, who is the Independent Children’s Lawyer in these proceedings and was, in addition, the Separate Representative in proceedings in the State court, made submissions consistent with the children remaining with their mother, and for time arrangements between the mother and father to be organised by agreement between them.
Mr Carter placed particular reliance upon an affidavit (and annexed report) of Mr M filed on 19 October 2009. The other parties, including counsel for the Department, also placed reliance upon that report.
It is important to observe that Mr M has been making observations of this family for some time. Reference to his reports is made in earlier decisions of the State court, reasons for some of which are contained as exhibits to the affidavit material read in support of the application.
In the context of the proceedings in this court, Mr M prepared a report some 12 months ago, and the report just referred to is an update of that report.
For reasons about which I propose to make no findings, and in circumstances about which I propose to make no findings, in the context of these proceedings, the maternal grandmother has not attended for interview by Mr M, as requested by the Independent Children’s Lawyer, and has been the subject of orders made by me on 29 April 2009.
Notwithstanding that absence, by reason of the significant connection that Mr M has had, in a forensic sense, with this family, and his observations over a period of time, and the fact that X, in particular, is now in his teens, it seems to me that I should attach significant weight to the opinions of Mr M in these interim proceedings.
In very broad terms, the report of Mr M can be seen as making positive remarks about each of the mother and father and the interactions of the children with them.
Significantly, as it seems to me, Mr M’s report can also be seen as recording a positive attitude on the part of the father towards the mother and a positive attitude on the part of the mother towards the father. The report is redolent of the mother and father being able to co-parent in a cooperative, under-stated and intelligent way. If that continues to be the case, in my view, it can only be of great benefit to the children.
Mr M has, obviously enough, spoken to both children and, importantly, spoken to X who is all but 13 years of age. His interviews with X, and what X has had to say during them, are recorded at paragraphs 27 and following of the report.
I consider it appropriate to refer to some short excerpts from the opinions there expressed. Mr M says:-
27 The boys attended with their mother and their father and [the mother’s partner] together. Over the course of the assessment, they interacted freely and comfortably as a cohesive family group …
28 In his interview, [X] spoke evenly and quietly. He said he found it a lot better living with his mother than previously with his grandparents because “back then there was always yelling, fighting, swearing and hitting and now it is calm.” He also believes that he is calmer now at his mother’s house. The only conflict which occurs is a few arguments between him and [Y].
29 He describes his parents as getting along well, reflecting on this by saying, ‘I am glad, because there is no fighting, and when Dad comes over he watches TV and goes on the trampoline together, and we go to his place, too. But he comes to our house as there is not enough room at his place.
Finally, at paragraph 31 of the report, Mr M says this:-
[X] said that he does not want to have anything to do with his grandparents. He referred to a couple of incidents prior to leaving his grandparents’ home which made him very upset, and in general his account of his relations with his grandparents was consistent – that the environment was an abusive and an unhappy one. He expressed dissatisfaction that they had not come to these interviews, as it appeared that he had worked this up to tell them this himself.
Unsurprisingly, perhaps, the matters just referred to resulted in conclusions and recommendations by Mr M consistent with the observations and opinions just referred to.
Mr M indicated that his observations of the children, including their interactions with their parents and with the mother’s partner:-
…strongly suggests that the care of the children has been stable and secure since the last assessment. The parents enjoy an unusually high level of trust, they interact freely, and they are able to make variations to their arrangements flexibly so that both children depict a happy situation wherein they can go easily from one household to another…
Mr M comments that the children:-
…stated definitively in their separate interviews that they did not wish to have any contact with their grandparents.
In my view, it is not insignificant, in circumstances where the grandmother seeks to have the children live with her, and where, as a consequence, the court would need to consider what time they might spend with each of their parents, that Mr M observed:-
Irrespective of the credibility of the children’s information about their grandparents relating to the quality of the care that existed at that time, it is evident that the relationship between [the mother] and her parents is so dysfunctional and conflicted that any arrangement between the two households would be extremely difficult.
An aspect of the ultimate conclusion reached by Mr M was an important part of the submissions made by the Independent Children’s Lawyer, Mr Carter. At paragraph 38 of his report, Mr M says:-
It is difficult to see that any arrangement which involved visits to their grandparents, seemingly against their wishes - or living with their grandparents against their wishes - would be to their benefit within the current context of discord. I am of the view that any such arrangement would rather tend towards conflict than not, and would destabilise the current security of the children.
Mr Carter submitted that in circumstances where, on any view of the evidence, significant conflict and difficulties have attended the earlier lives of these children, the continuation of the emotional stability referred to by Mr M is an important consideration in these interim proceedings. I completely agree.
It will be seen that the matters just referred to readily find reflection in a number of the statutory Considerations which need to be taken into account by me in arriving at a decision about the children’s best interests, even on an interim basis. I am not unaware that the Act delineates between what it describes as “primary considerations” and what it describes as “additional considerations”. I am cognisant also that this distinction has been the subject of decisions both at first instance and in the Full Court.
It is not necessary to refer specifically to those decisions in the context of this case. However, it is important for me to recognise that there are two primary considerations, the first of which is readily met by an order sought by the mother and by the other parties to the proceedings, apart from the grandparents.
The children, in my view, will clearly benefit from having a meaningful relationship with both of their parents, and I have no doubt that this is likely to best be promoted in circumstances where the children continue to live with the mother.
A second, and equally important, primary consideration is the need to protect children form physical or psychological harm, from being subjected to or exposed to abuse, neglect, or family violence. I am acutely aware that the facts and circumstances surrounding the assertions of risk that founded the action by the Department in February 2008 are the subject of significant dispute by the grandmother. She was at pains to outline, at very considerable length, in her submissions exactly what her position was in respect of that. Ultimately, this is a matter for trial.
Equally, I am cognisant of the fact that the mother makes assertions that the children are at risk if they spend time with their grandparents or, indeed, have any contact with them.
Again, it is important to emphasis that, in respect of such an important matter as risk to a child from whatever harm might be asserted, that the court proceed cautiously and conservatively. In the murky facts and circumstances of this case, on an interim basis, I propose to place significant reliance upon both the report of Mr M and the assessments of risk undertaken by professional officers within the Department of Communities (Child Safety Services) who are charged with statutory responsibilities in that respect.
There is unanimity about the position adopted by each of the Departmental officers and by Mr M. There is risk to the children, they each assert, if the children were to be placed into the care of their maternal grandparents, or if they were to spend time with the maternal grandparents.
Mr M is quite specific about the children’s view in his report, and he is quite specific in ultimately recommending that the children live with the mother, see their father in accordance with the agreement reached between the mother and father, and neither spend time with, nor communicate with, the maternal grandparents.
On the current state of the evidence before me, again emphasising the interim nature of these proceedings, I can see no benefit to the children in them living with their maternal grandparents or spending any time with them.
I can see little benefit in them communicating with their maternal grandparents, save as they might themselves desire by way of cards or letters. Specifically, I can see no benefit, and some potential harm, if the grandparents were to communicate with the children or spend time with them. Certainly that is the conclusion that has been reached the Departmental officers to which I have just referred (even if not expressed in those precise terms), and also the conclusion ultimately reached by Mr M in his fairly extensive involvement with this family.
The submissions by the grandmother were wide ranging and, for approximately the first 40 minutes or so of them, preoccupied with a plethora of facts and a series of allegations made against the mother, the Department and other people. During that 40 minutes or so of submissions there was, not the slightest mention - at any time - of anything to do with the best interest of the two children the subject of these proceedings.
At the conclusion of that long soliloquy I asked the grandmother to address herself to the specific issues that needed to be decided by me. There was then a technological problem with the telephone connection. Once that was cured, the grandmother made a number of submissions.
Essentially, the grandmother made a number of factual assertions. She said, for example, that the mother had hit one of the children across the head, and alluded to other violence; said that the children had been in her care for the majority of their lives and, in Y’s case, effectively since he was born; that the children had been taken from a Catholic school and placed into, she alleges, a State school (although there is no evidence about that before me).
The children have, of course, been living with the mother, and seeing their father in or around Brisbane. The grandmother lives, at the present time, in a small place which, I gather, is somewhere in western New South Wales.
The grandmother asserted that the children wanted to see their maternal grandparents. That evidence is, of course, directly contrary to the evidence of Mr M. I accept the limitations in Mr M’s report arising from the fact that it was compiled (for reasons which may yet be explored more fully at the trial) without the involvement of the grandmother. But, nevertheless, in the context of these interim proceedings, I propose to rely upon it.
During the course of her submissions the grandmother referred to the mother as a “paedophile”. I have now had the opportunity, on a number of occasions, to observe the grandmother in her representation of herself. I am acutely aware that sometimes self-representation can bring with it significant disadvantages for people. I take that into account. I particularly have in mind, for example, what the High Court said in Neil & Knott about that fact. However, as has been otherwise commented upon, for example, by Wilson J in England in a paper delivered by him called The Misnomer of Family Law, “self-representation by a party can often give the court the opportunity to observe things, hear things, and see things that might otherwise be shrouded in the expertise of legal representation”. Such is, in my view, the case here.
The grandmother had to be reminded by me on multiple occasions (by my count approximately eight or nine), to stop interrupting me and to stop interrupting other people in the course of these proceedings. I understand that, in the course of parenting proceedings, emotions can run high. Emotions, understandably, run high in this case. In that context parties, particularly self-represented parties, can act in an unrestrained way. However, the repeated and remorseless actions by the grandmother in that respect go well beyond that which a court might reasonably expect in that regard.
I am convinced that, if the grandmother were to have any exposure to the children, that the sorts of views expressed by her - for example, that the children’s mother is “a paedophile” - would be equally unrestrained. I have little doubt that the grandmother would not be able to help herself in what she said about the mother, and probably the father, to the children in those circumstances.
The maternal grandfather in his submissions, in essence, traversed a lengthy history of this matter and again, in my view, offered no reasons of substance that would suggest that it is in the best interests of these children that they either live with the maternal grandparents, spend time with them or communicate with them, save, in the latter case, as they might choose.
To the extent that the grandfather’s submissions were relevant to the best interests of the children, it seems to me that they, too, were centred upon the historical caring role that he and the maternal grandmother had provided to the children when they were very young.
I am not persuaded by any of the submissions made by the maternal grandparents, nor by any evidence filed on their behalf, that any Considerations relevant to the best interests of these two children should result in them either living with the maternal grandparents, or spending any time with or communicating with them.
For those reasons I order that, upon the cessation of the State child welfare law, the children live with their mother, spend time with their father as agreed between the father and the mother, and that they spend no time with their maternal grandparents, and that the maternal grandparents not communicate with the children without further order of the court.
I order that the children be permitted, and the mother shall encourage the children, to contact the maternal grandparents at all such times as the children might express a desire so to do.
The Act requires, even in interim proceedings, that I should apply a presumption of equal shared parental responsibility. That expression is not defined within the Act.
However, section 65DAC, makes it plain that those who share parental responsibility equally must engage in a particular form of communication. Significantly, as it seems to me, the Act makes it plain that that is by no means a passive process.
The Act requires that such an order is taken to require relevant decisions to be made jointly by the parents, and s 65DAC(3) makes it clear that the order is taken to require each of the parents to consult with the other in relation to the decision to be made about that issue and to make a genuine effort to come to a joint decision about that issue.
In a decision given by me, reported under the name Carlson & Bowden [2008] FamCA 1064, I set out what I consider to be the principles applicable in respect of parental responsibility where parents were joined in litigation with non-parents and where the issue of parental responsibility was live between those parties.
I repeat the principles there outlined in the context of this application.
I decline to make any order in favour of the maternal grandmother in respect of parental responsibility. I can see no aspect of the children’s best interests that would point to such an order.
The grandmother makes oral application for a stay of the orders just made by me pending what she says will be an appeal lodged by her at the conclusion of these proceedings.
Rule 22.11 of the Family Law Rules 2004 makes provision for what should occur in respect of an application for a stay. Rule 22.11(2) provides:-
If an appeal has been started, or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all or part of the order to which the appeal or application relates.
As I said to the grandmother, the court does not have power to order a stay until such time as “an appeal has been started.” An appeal is not started until a Notice of Appeal is filed.
Until a Notice of Appeal is filed I hold that I do not have the power to order a stay. The oral application made by the grandmother is refused.
I will order then, formally, that the Response to an application in the case filed by the Independent Children’s Lawyer on 15 October 2009 be dismissed.
I reserve any question of costs in respect of any party to the trial of this action.
I certify that the preceding three hundred and six (306) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy
Associate:
Date: 3 November 2009
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