Corbett and Corbett-Smythe & Anor

[2007] FamCA 1717

FAMILY COURT OF AUSTRALIA

CORBETT AND CORBETT-SMYTHE & ANOR [2007] FamCA 1717

FAMILY LAW – CHILDREN – With whom a child lives – unacceptable risk – relocation – interim orders made for the children to live with maternal grandmother

Family Law Act 1975 (Cth)

APPLICANTS: Mrs Corbett & Mr Corbett

RESPONDENT MOTHER: Ms Corbett-Smythe  

RESPONDENT FATHER: Mr Quaid

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 927 Of 2006

DATE DELIVERED: 21 June 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 21 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Mr Sweeney of Counsel

SOLICITOR FOR THE APPLICANTS: Forte Family Lawyers

COUNSEL FOR THE RESPONDENT

MOTHER

Ms Glaister

SOLICITOR FOR THE RESPONDENT

MOTHER:

Cash & Stavroulakis

THE RESPONDENT FATHER:

SOLICITORS FOR THE RESPONDENT FATHER:

In person

Tyler Tipping & Woods

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms A. Agresta

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Victorian Legal Aid

Orders

1. All applications be adjourned to the Registrar’s Duty List at 9:45am on 19 July 2007.

2. Until further order:

   a.    the maternal grandparents have sole responsibility for the decisions made with respect the to medical and psychological issues of the children a son born … June 2003 and a daughter born … September 2006;

   b.    the said children live with the maternal grandparents and they be at liberty to return the children to Western Australia;

   c.    the time the children spend with mother be agreed between the mother and the maternal grandparents;

   d.    the father spent time with the children as follows:

   i.with the son each fourth week from 7 July 2007;

   a.         from 9:00am to 4:00pm each Saturday;

   b.         from 9:00am to 4:00pm on the Sunday next following;

   c.         otherwise as agreed;

   ii.with the daughter each fourth week:

   a.         from 9:00am until 11:00am on the Saturday;

   b.from 9:00am to 11:00am on the Sunday next following to coincide with the days on which time is spent with the son;

   e.    the time spend under paragraph 2 (d) be supervised by an authorised representative of the Perth Contact Centre or in the event of failure to make such nomination, then the time shall be supervised by one or both of the maternal grandparents.

3. In order to facilitate the father spending time with the children the maternal grandparents shall meet the cost of pre-paid air travel by the father in travelling to Perth until the Trial.

4. The hearing fixed for 12 July 2007 be vacated.

5. The father file and serve any response and affidavit in support thereof on which he proposes to rely at the said adjourned hearing no later than 4:00pm on 12 July 2007.

6. All questions of costs be reserved.

7. General liberty be reserved to both parties to apply.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 927 of 2006

MRS CORBETT & MR CORBETT

Applicants

And

MS CORBETT-SMYTHE & MR QUAID

Respondents

REASONS FOR JUDGMENT

1. This matter concerns two children, a son, born in June 2003 and a daughter, born in September 2006.  The parties are the applicant grandparents and the father and the mother.  I have also had the advantage of an independent children's lawyer and submissions made amicus curiae on behalf of the Department of Human Services of the state of Victoria.

2. It will be difficult to conceive of a situation in which children could be living in more dysfunctional circumstances than they are in this matter.  The mother lived with the children in Melbourne prior to January 2007 at which time she returned to Western Australia.  She had intended to fly on to Western Australia and then travel by road to W at which her indigenous people live. 

3. However the grandmother was extremely concerned about the welfare of the children.  She has deposed that the son’s behaviour had deteriorated and that the daughter was completely unresponsive to any prompts.  She had pleaded with the mother to leave, particularly the younger child with her but the mother refused to do so.  The grandmother has deposed that a few days after that the mother had telephoned her from Western Australia and asked her to come and fetch the younger child because the mother was not coping.

4. The mother did that and has deposed in paragraph 28 of her affidavit that the younger child was in "a terrible state".  The particulars of that state as included in that paragraph make very distressing reading indeed.  The mother was ordered by the court to return to Melbourne because the father had succeeded in obtaining a recovery order from the court. 

5. She did that in late May, that is a few weeks ago, and remains in Melbourne to the present time.  She is living in a women's refuge in Melbourne so her mother, that is the applicant grandmother, cannot give her any assistance.  One of the children requires very significant medical intervention for health problems which it is not necessary to go into here.  It is quite clear and conceded by the mother that she cannot cope with the care of the children and requires the assistance of her mother, the applicant grandmother.

6. I have been presented with minutes of proposed orders by consent but the consent is only between the grandmother, the mother and the independent children's lawyer with the Department of Human Services agreeing amicus curiae but obviously not a party to those orders.

7. It has been indicated to me by the department's counsel today that the department has significant concerns of a protective nature for the child in the sole care of the mother.  The minutes of proposed orders, which as I have said are only by consent between those parties, but opposed by the father who appears in person, provide for all proceedings to be transferred to the Family Court of Western Australia.  A trial date for final applications as between the father and the mother has been set in this registry of the court for 12 July of this year but given the intervention of the grandmother, that clearly cannot stand and needs to be vacated.

8. The proposal then is that the grandmother have parental responsibility for making decisions with respect to the children's medical and psychological issues and that they live with her in Western Australia.  Time to be spent by the children with the mother would be as negotiated between the two adults and, on the basis that it is anticipated that the mother will return to live with the grandmother in Perth, that that would pose no problem.

9. The difficulty is the father spending time and communicating with the children.  The minutes of orders provide that the grandmother would facilitate that for the father by meeting the cost of prepaid air travel by the father to Perth until the trial of the proceedings in that court at which time the matter could be determined. 

10. The objections of the father are first that he was only served with a copy of these documents some days ago and has not had the opportunity to respond.  Those facts are conceded.  The father has been spending regular time with the children.  There have been orders for them to live with him but I am informed that those orders have never been given practical effect. 

11. In addition to that, in the next few weeks the father is to appear at a committal for trial in the Magistrates Court of Victoria on very serious charges of violence against the mother, including rape.  The father has indicated to me that he will plead not guilty.  While the provisions of section 128 of the Evidence Act would enable him to be protected by the granting of a certificate provided in that legislation, that would not necessarily be the complete answer to ensuring that he is protected altogether at committal and in any forthcoming trial, if that is the decision at the committal.

12. However the father chooses to file further material in this court and seeks an adjournment.  That is not opposed.  Accordingly I will be adjourning the proceedings to the registrar's duty list in the next couple of weeks.  I will determine a date for that shortly.  I will require the father to file any material on which he proposes to rely.  However that still leaves the question of where the children should live in the meantime.  Given that proceedings will continue in this court it is not appropriate to transfer the proceedings to the Family Court of Western Australia at least at this stage.  That may become appropriate at a later stage but that is something for future consideration. 

13. I am persuaded to the highest degree of probability that it is in the children's best interests that I accede to the application that in the interim they be placed in the residence of the grandmother on the terms provided in the minutes with the ability to the father to avail himself of spending time with them, again on the basis as suggested in the minutes. 

14. In saying that I note his submission from the bar table as to health problems which may prevent him from travelling but in the circumstances and particularly given the degree of risk to the children in not acceding to the grandmother's application immediately, I have decided that the interests of the children outweigh the considerations of his difficulties in travel.

15. While fully understanding that he does not like the decision which I am making, it is not his rights which are the primary thing here but rather the rights of the children.  Not to accede to these orders would impose on the children a risk, an unacceptable risk of enormous proportions.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate

Date:  19 November 2008