Darwin and Gryner and Anor

[2010] FamCA 15

FAMILY COURT OF AUSTRALIA

DARWIN & GRYNER AND ANOR	[2010] FamCA 15
FAMILY LAW – CHILDREN – Interim parenting orders – Where the child has lived with his step-Mother on the death of his Father – Where the child’s relationship with the mother is recently formed – Where the Mother’s commitment has been questionable – Parental responsibility given to the step-Mother
APPLICANT:		Mr Darwin

FIRST RESPONDENT: Ms Gryner

SECOND RESPONDENT: Ms Heath

INDEPENDENT CHILDREN’S LAWYER: Ms Hawdon, Solicitor

FILE NUMBER: BRC 1743 of 2009

DATE DELIVERED: 11 January 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 11 January 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: There was no appearance by the Applicant Maternal Uncle

COUNSEL FOR THE FIRST RESPONDENT: The First Respondent Mother appeared in person

SOLICITOR FOR THE SECOND

RESPONDENT:

Ms Armstrong, Solicitor of Dean Kath Kohler Solicitors appeared for the Second Respondent Step-Mother

SOLICTOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Hawdon, Solicitor of Forest Glen Lawyers appeared as the Independent Children’s Lawyer

Orders

IT IS ORDERED THAT:

1. The Maternal Uncle’s Application in Form 1 dated 2 March 2009 is dismissed.

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The child, M, born … January 2000, live with the Step-Mother.

2. The Step-Mother have sole parental responsibility for the short term and long term care, welfare and development of the child.

3. Commencing 30 January 2010 the Mother is to spend time with the child on a four (4) weekly basis for four (4) hours on Saturday and Sunday between 10.00 am and 2.00 pm in O.

4. The child is not to be brought into contact with Mr Gryner.

5. The Mother is to have telephone communication with the child at all reasonable times as may be agreed between the parties.

IT IS FURTHER ORDERED THAT:

1. The proceedings be adjourned for case management review to 9.30 am on 28 May 2010 at the Brisbane Registry of the Family Court with the parties only given leave to appear by telephone if they agree the interim arrangements are progressing satisfactorily.

2. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1743 of 2009

MR DARWIN

Applicant

And

MS GRYNER

First Respondent

And

MS HEATH

Second Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The child, the subject of this litigation, is a nine year old boy, M; he turns 10 later this month.  He is in grade 5 this year, attending the C State School.  The child currently lives with Ms Heath, who was in a long-term relationship with the child’s father.  Though they did not actually reside together.  The child’s father died in 2008.

2. A Legal Aid settlement conference was conducted in O in November of 2008 and as a result of that meeting, a parenting plan was developed.  The parenting plan provided that the child was to live with the step-mother, Ms Heath, and the child was to spend time with the mother and his uncle, that is Mr Darwin, if he is in attendance, each alternate weekend for four hours on both Saturday and Sunday, 10.00 am until 2.00 pm in O with the maternal grandmother to be present for the time.  There was a further order that the child was not to be brought in to face-to-face contact with either N Darwin or Mr Gryner at any time.  There were other provisions that related to the step-mother taking the child up to H but that hasn’t eventuated.

3. The maternal uncle, Mr Darwin, initiated these proceedings by the filing of an application on 2 March last year.  I do not need to canvass the orders he sought, suffice to say he is not pursuing his application and on today’s date I will dismiss his application dated 2 March 2009.  I am informed that he has indicated in clear terms that he is not going to pursue the court proceedings.  In any event, he has failed to appear on today’s date.  He hasn’t actually filed a notice of discontinuance but I will dispose of that aspect of these proceedings in that fashion.

4. The child’s mother is a respondent in those proceedings and she is seeking orders in summary form that the child live with her up in H and that she have sole parental responsibility for the child and she sets out various orders in her response document filed on 17 April last year.

5. The second respondent is, of course, Ms Heath, whom I will refer to as the child’s step-mother.  She has filed a case outline document on 17 December.  She annexes the final orders that she’s seeking.  Effectively, they reflect the nature of the agreement set out in the parenting plan except that the time is limited to once a month for four hours on both Saturday and a Sunday.

6. The litigation, then, is now between the child’s mother on the one hand and the stepmother on the other, the stepmother living in C and the mother living in H.  The mother hasn’t seen the child since either June or August last year, there’s a difference between the accounts given by the parties.  The mother, I’m informed, has not exercised her right for phone communication for some time with the child.

7. The court has been assisted by the appointment of an independent children’s lawyer who has familiarity with this matter over a period of time, a report from a social worker, Ms L, the assessment report of Mr P, the family consultant, and two reports from Dr K, a psychiatrist in private practice.  In relation to Ms L’s recommendations for final living arrangements, paragraph 18.1 of her report, which was dated August last year, her recommendation is that:

   “The final living arrangements recommended are that the child resides with [the step-mother].”

   Under paragraph 18.2 she says:

   “[The child] is 9 years of age and only recently met his mother.  He has commenced contact with his mother and extended family members in recent months however from my observations and interviews with [the child], it is my opinion this relationship is in its early development phases with limited attachment formed at this point.  It is, however, likely to be a positive relationship for [the child] should it be nurtured and conducted safely and it is likely to assist him in adolescence particularly around identity development and his ongoing adjustment to the loss of his father. Therefore, the relationship will need to fostered and monitored over time and these are to be considered as interim recommendations.”

8. The child is in a invidious position in that at a young age he’s lost his father, he has not had a relationship with his mother and it is well known that if children have a parent that they’re not having a relationship with they tend to fictionalise or fantasise or idealise, that relationship.  It’s far better that the child has a relationship with the surviving parent so the child can have concrete thoughts based in reality.

9. Under the heading Interim Time Arrangements, Ms L proposes one weekend each month, four hours on Saturday and Sunday, very similar to the arrangements set out in the parenting plan.  She does propose increasing the time and those are set out in paragraphs 18.4 down to 18.12.  I don’t propose to canvass those.  I’m going to take things slowly and steadily.  I’ll make as court orders and hope that in the intervening period, when I next adjourn this matter and deal with it, that the situation can be reviewed but in the meantime we do re-establish time between young M and his mother and maternal grandmother.

10. I’ve had regard to Dr K’s report, in particular his recommendations and observations.  I don’t propose to read those in to the record, suffice it to say that as I read his report he would be supporting the assessment of Ms L, as does Mr P, that to move the child at this point in time from the stable relationship he has been in for virtually the whole of his life would be too stressful altogether.

11. So my reasons in summary form as to why I’m making the limited orders that I propose to put in place involve the fact that the child has not had a relationship with his mother.  The only time he has spent over the last nine or so years is the time since the parenting plan was entered into in November 2008 and that was limited to four hours on a Saturday and Sunday once a fortnight.  Eventually that slipped back to once a month and for the last four or six months there has been no time at all.  I understand it relates to problems with the maternal uncle not being able to devote the time necessary, it’s also related to economic hardship as the mother is on a disability pension.

12. I do have to question her commitment if she’s not making any phone calls and the court will be looking at that aspect to say, well, if you’re serious about wanting this child, to have a relationship with him, you should be making a greater effort to either communicate with him by post or by phone calls.  I note the child’s wishes, as expressed to Ms L and to Mr P, is that he wants to remains with the step-mother in C.  I note, in passing, the mother’s had five other children and those children, for various reasons, are not in her care.

13. It is a difficulty in her case that her current husband, Mr Gryner, served a term of imprisonment after he was convicted for sexual abuse of the mother’s eldest child.  I understand that the maternal grandfather has no relationship with Mr Gryner.  I’ve canvassed the possibility of Mr Gryner being able to do the driving and seeing the child but there is strenuous opposition from the step-mother about that.  Until I know more about the situation, it seems to me that prohibition should remain in place.

14. The effect of that is that Mr Gryner, the mother’s husband, can do the driving but once the parties are in O he can go off on his own and the step-mother, Mrs Heath, can deliver the child in from C to O on the Saturday and Sunday.  I’ll make it that it will start on Saturday, 30 January and be four weekly thereafter.

ORDERS DELIVERED

1. That’s the only effective order that one could make at the present time as she is the permanent carer and has been for years. 

ORDERS DELIVERED

1. There had previously been arrangements about subsidising travel arrangements, I don’t propose to enter in to that.  The step-mother has the sole cost of raising the child, I don’t see why she should have to subsidise the mother’s travel arrangements.  I’ll make an order for telephone communication. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  11 January 2010