Cornell and Grover

FAMILY COURT OF AUSTRALIA

CORNELL & GROVER

[2009 ] FamCA 462

FAMILY LAW – CHILDREN – Interim – With whom a child lives

APPLICANT:

Mr Cornell

RESPONDENT:

Ms Grover

FILE NUMBER:

NCC

336

2009

DATE DELIVERED:

18 March 2009

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Newcastle

JUDGMENT OF:

Stevenson J

HEARING DATE:

6 March 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Gray
Curtis Delaney Gray

SOLICITOR FOR THE RESPONDENT:

Mr Steel
Stuart Percy & Associates

Orders

I make the following orders:

Pending further order, that the child … born on … October 2007 (“the child”) live with the father.
That the mother deliver the child to the father at S Post Office at 10:00am on Sunday 22 March 2009.
Pending further order, that the father and the child live at the home of the paternal grandparents, Mr and Mrs Cornell Snr at W Street, S, New south Wales.
That the proceedings be listed before Federal Magistrate Coakes, at his Honour’s convenience, for determination of the time which the child shall spend with his mother.
That these proceedings are transferred to the docket of Federal Magistrate Coakes and listed for further directions on a date convenient to his Honour.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: NCC 336 of 2009

MR CORNELL

Applicant

And

MS GROVER

Respondent

REASONS FOR JUDGMENT

The Proceedings

These proceedings are the competing interim applications of the father, Mr Cornell, and the mother, Ms Grover, in respect of their son who was born in October 2007 and is now 1½ years old. The father lives in S and the mother lives at D. The parties’ homes are approximately 700 kilometres apart.
The mother has two other children, an older daughter, who is now 10, and a younger daughter, who is now 4. The older daughter lives with her mother at D and the younger lives with her father in S.
The applicant, the father, proposed that the subject child live with him in the home of his parents at S. He made no suggestion as to what time the child should spend with his mother or how any such arrangement might be implemented.
The respondent, the mother, proposed that the child live with her at D. She will shortly obtain a rental property which will be shared with her older daughter, a 15 year old girl named … and possibly other persons. She sought an order that the subject child spend time with his father only under the supervision of his aunt, Ms C, at L.

Background

The father, who is now 21, and the mother, who is now 27, commenced their relationship in 2005. They separated in November 2008 but continued to occupy the same premises at D until 12 December 2008, when the father took the child to his parents’ home in S.
Following the child birth in October 2007 the father and the mother lived at S in a house which they shared with a female friend. The mother’s older daughter lived with the maternal grandmother between April and December 2007. The mother said that this arrangement came about because she suffered from a condition of “threatened miscarriage” and depression during her pregnancy with the subject child. The parties moved to D from S in approximately April 2008.
According to the mother, during the month of separation under one roof the parties had an arrangement whereby they spent alternate weekends with the subject child and the mother’s older daughter. Apparently the weekend of 12 December 2008 was the father’s scheduled time with the children.
The mother spent that evening drinking with friends at a hotel and a private home. It seems that she returned to the parties’ home, at the request of the father, at some stage during the evening. On her own admission, the mother consumed five standard drinks during the course of this evening.
At approximately 1:00am on the night of 12 December 2008 the mother discovered that the father had left their home with the child. When she rang him on his mobile telephone, he told her that he was returning to S with the child.
The mother took no action to secure the child’s return to her care until 5 February 2009, that is, 8 weeks after the father had taken him to S. She gave no satisfactory explanation in her affidavit for her lack of action.
On 5 February 2009 the mother attended the child’s day care centre in S and removed him, with no consultation at all with the father. She was accompanied by one Mr N, who drove her and the child back to D. The father commenced the present proceedings very promptly after this event, by filing an application on 13 February 2009.

Consideration

Neither party sought an order for sole parental responsibility I might observe that the word “responsible”, in a general sense, does not sit comfortably with the conduct of either of these parties.
Each parent made serious allegations of substance abuse, mental health issues and general irresponsibility against the other. The mother alleged, further, that the father has directed physical violence at her. Obviously, in the context of interim proceedings and without the benefit of cross-examination I am unable to make findings as to these disputed factual issues. I observe that a large portion of the material in the mother’s affidavit was clearly in inadmissible form.
The paucity of the proposals or evidence of each of the parties in relation to the child’s time with the other parent, once the decision as to primary residence has been reached, means that I cannot determine that issue at this stage. I will make a determination as to what orders as to the child’s primary residence are in his best interests, by reference to the considerations set out in section 60CC of the Family Law Act. The matter will then be listed before Federal Magistrate Coakes, at his Honour’s convenience, for consideration as to the time which the child will spend with his other parent.

Section 60CC(2)

Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents;

I have no doubt that the child will benefit from having a meaningful relationship with each of his parents. The problem in achieving this objective, in practical terms, is that the father and the mother currently live 700 kms apart and neither made any sensible proposal as to how the relationship with the other parent might be fostered.
Section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
As noted, there were numerous mutual allegations of unacceptable, irresponsible behaviour levelled at each party against the other. These allegations were unable to be tested or made the subject of factual findings in this interim hearing. I can be confident only that the fact of the father and the child’s residence with his parents goes some way to ensuring that the child is protected from harm in the immediate future.
I appreciate that the mother levelled criticisms at the father’s parents and alleged that he has a poor relationship with them. That evidence flies in the face of the material in the affidavit of the father’s father, the paternal grandfather. The paternal grandfather indicated that his son has the support of himself and his wife and that they enjoy having their grandson in their home. I am persuaded that the paternal grandparents will ensure the child’s physical and emotional safety, out of genuine affection for their grandson.

Section 60CC(3)
Section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views;

At 18 months of age, the child has obviously not expressed any views as to parenting arrangements.
Section 60CC(3)(b): the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
There was no independent evidence as to the nature of the child’s relationship with either of his parents or paternal grandparents. On the other hand, there was nothing in the evidence which would indicate a problematic relationship with any significant person in his life.
Section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The willingness and ability of both the father and the mother to facilitate and encourage a relationship with the other party is questionable, because of the lack of any sensible proposal by either of them as to time with the non-residence parent. In the case of the father, the issue was simply left to be determined by the court on the basis of no proposals or evidence whatsoever.
In the mother’s case, the proposal was only for time supervised by the father’s aunt, Ms C, at L. There was no evidence from Ms C as to whether she was even aware of this proposal, let alone whether she was willing or suitable to act in the role of supervisor.
A further cause for concern pursuant to this consideration is that each of the parties has unilaterally removed the child from the care of the other parent, apparently with no regard to the impact on him of being suddenly separated from his mother or his father. Nothing in the evidence suggests any attempt to arrange for the child to spend time with his other parent following these unilateral actions.
I would note, however, that the father approached Relationships Australia on 16 December 2008 to enquire about the availability of mediation. I am not aware as to whether any approach was made to the mother to participate in this process.
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
In my view the child will be afforded stability if he returns to live with his father in the home of his paternal grandparents. There was evidence from the paternal grandfather that this accommodation is available to the child and his father for as long as is necessary.
The mother is currently staying with an unnamed friend in D, while waiting to move into rented accommodation in that town. I know nothing about this “friend” or whether he/she is a suitable person to share premises with the child. I know nothing of the terms of any lease into which the mother proposes to enter. Further, I have no idea as to who may occupy these premises in addition to the mother and her older daughter.
Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
As noted, the parties’ homes are 700 kms apart. Neither the father nor the mother saw fit to address the obvious practical difficulties and expense of the child spending time with the non-residence parent. An added complication is that the mother does not have a drivers licence and the father has employment commitments.
Section 60CC(3)(f): the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
There were numerous allegations which go to the capacity of each of the parents and the paternal grandparents to provide for the child’s needs. At this stage it is sufficient to say that I have concerns as to the capacity of each of the parents but I am reassured by the fact that the father and the child are able to live with the paternal grandparents.
I have a concern as to the mother’s capacity to prioritise the child’s needs over her own, due to her inaction for 8 weeks after the father took him from D to S. By contrast, the father acted very quickly to secure the child’s return to his care after the mother took him to D.
Section 60CC(3)(g): the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
No relevant considerations arise pursuant to this factor.
Section 60CC(3)(h): if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
No relevant considerations arise pursuant to this factor.
Section 60CC(3)(j): any family violence involving the child or a member of the child’s family;
Section 60CC(3)(k): any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
The mother alleged acts of violence perpetrated against her by the father. I am unable to determine whether her evidence was truthful, in the absence of cross-examination or independent corroboration. I note that each party alleged that the other engages in substance abuse, which may have been a contributing factor to the obvious turbulence in their relationship. As far as I am aware, no family violence orders are in existence.
Section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is inevitable that there will be further proceedings, as this application is interim in nature. As noted, I cannot even determine what arrangements or time with the non-resident parent would serve the child’s best interests, on the current state of the evidence.

Conclusion

For the above reasons, I conclude that the child's best interests will be served if he lives with his father in the home of his parents at S. I will not countenance a situation in which the child lives with his father alone or in shared accommodation. I am obliged to leave Federal Magistrate Coakes to make a further determination as to what time with his mother will be in the child’s best interests.

I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:

Date: 18 March 2009

[2009] FamCA 462

18 March 2009

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies

Procedural Fairness