Drury and Lance and Anor
[2007] FamCA 126
•5 February 2007
FAMILY COURT OF AUSTRALIA
| DRURY & LANCE & ANOR | [2007] FamCA 126 |
| FAMILY LAW – CHILDREN - PARENTING - final orders - Magellan |
| Family Law Act 1975 (Cth) |
| FATHER: | Mr Drury |
| MOTHER: | Ms Lance |
| INTERVENOR: | The paternal grandmother |
| INDEPENDENT CHILDREN’S LAWYER: | Independent children's lawyer |
| FILE NUMBER: | MLF | 1875 | of | 2002 |
| DATE DELIVERED: | 5 February, 2007 |
| PLACE DELIVERED: | Melbourne |
| JUDGMENT OF: | Brown J |
| HEARING DATE: | 5 February, 2007 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | The husband in person |
| SOLICITOR FOR THE RESPONDENT: | No appearance |
| COUNSEL FOR THE INTERVENOR: | Ms Vohra |
| SOLICITOR FOR THE INTERVENOR: | Kennedy Guy, DX 30301, Sunshine |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | Ms McCreadie |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | Septimus Jones & Lee, DX 186, Melbourne |
Orders
That all previous parenting orders in respect of the child A born in December, 2000 be discharged.
That the child live with the paternal grandmother, Mrs E, and she be responsible for her day to day care, welfare and development.
That the paternal grandmother and the father share parental responsibility for the child’s long term care, welfare and development.
That the father spend such time with the child as is agreed with the paternal grandmother PROVIDED THAT it be in the absolute discretion of the paternal grandmother to decide whether, on the information then available to her, the child’s safety and wellbeing will be assured in his care.
That the mother spend such time with the child as is agreed with the paternal grandmother PROVIDED THAT :
(a)it be in the absolute discretion of the paternal grandmother to decide whether, on the information then available to her, the child’s safety and wellbeing will be assured in her care; and
(b)prior to spending any time with the child the mother attend and comply with all lawful directions of a treating medical or mental health practitioner as recommended by Dr E in his psychiatric evaluation dated 26 May, 2006, including compliance with any prescribed medication; and
(c)the mother be restrained in the 24 hours immediately prior to the commencement of any period of time with the child and during each period of time with her, from ingesting, consuming or using or being otherwise under the influence of alcohol of any legal or illegal drug or substance save and except for :
(i)any medication prescribed by a registered medical practitioner and taken strictly in accordance with such prescription; and
(ii)any over-the-counter lawful medication or pharmaceutical substance routinely sold in major supermarkets and taken or used in accordance with directions appearing on such medication or pharmaceutical substance.
That during periods the father is with the child he not consume alcohol to excess.
That the mother by herself, her servants and agents be and is hereby restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the paternal grandmother or the father to or in the presence or hearing of the child and from permitting any other person to do so.
That the mother advise the paternal grandmother and keep her advised of a current residential address, landline telephone number and mobile telephone number (as applicable) and that any time spent by her with the child be conditional on compliance with this order.
That the independent children’s lawyer be discharged one month from this date or, in the event a Notice of Appeal is filed, on determination of such appeal.
That all extant applications be otherwise dismissed.
That these proceedings be removed from the List of matters awaiting finalisation.
That the Court send three sealed copies of these orders to the paternal grandmother.
That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, 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.
That the reasons for judgment this day be transcribed and that copies be made available to the parties.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 1875 of 2002
| Mr Drury |
Father
And
| Ms Lance |
Mother
Mrs Easton (Paternal Grandmother)
Independent children’s lawyer
REASONS FOR JUDGMENT
The parties to this litigation are the parents and the paternal grandmother of the child, who was born on in December 2000. The child’s father is Mr Drury. Her mother is Ms Lance. Her paternal grandmother is Mrs Easton.
The parents started living together in March or April 2000, about six months before the child’s birth. They separated on or about Christmas Day 2000, when she was less than a few weeks old.
The first notification to the Department of Human Services was made in December 2000. Some seven notifications followed, culminating in a notification made (in the course of the proceedings before me) on 17 July 2005. The father filed applications in the Federal Magistrates Court on 30 September 2005 seeking residence of the child, after a raft of earlier proceedings to which I do not need to refer.
On 14 October, 2005 the father filed a notice of abuse or risk of abuse. That day, the Federal Magistrates Court granted his mother leave to intervene and ordered that, until further order, the child live with her paternal grandmother. A number of other orders provided for the child to have contact with her mother on a number of days a week and orders for drug testing. DHS was requested to intervene and the case was transferred to this Court. The mother filed two affidavits on 14 October, 2005 and a response dated 13 October, 2005. She sought the dismissal of the father's application for residence. She has not filed a document since. In this Court the case was referred to the Magellan list.
On 5 December 2005, DHS provided a report to the court, as is routinely done when a matter has been transferred to the Magellan list. The report detailed its prior and current involvement and indicated that the department had no immediate protective concerns, as the child was safe in the care of her grandmother.
On 16 December 2005, the grandmother filed a response and an interim application seeking residence of the child. She sought that contact between the parents and the child be as determined by the Court, and a number of orders in relation to drug use. Another family report was ordered and prepared by Ms T. It was released on 1 May 2006. Importantly, an affidavit sworn by Dr E was filed on 29 November, 2006, annexing a report containing psychiatric assessments of the child’s parents.
The pre-trial conference was on 22 January, 2007. The mother failed to attend. The parties were ordered to file any further material by 2 February 2007. The independent children's lawyer was to notify the mother of the orders made, and did so. The mother was then advised by the court that the case was listed for hearing in these sittings, which commenced today. A second notice, making it clear the matter would be listed today, was sent to her by the court (by Express Post addressed to her last known address) on Thursday. She has been called and has not appeared. Having regard to her lack of involvement in the proceedings since 2005 that is perhaps not surprising.
The legislation in relation to children is built on twin pillars. The first is the vital importance of children having the maximum relationship possible with both their parents, provided it is in their best interests. The second is the vital importance of protecting children from violence and abuse. There is a presumption that parents share equal joint parental responsibility for children. That can be displaced if there is evidence of violence or abuse directed at the child, and can be rebutted by evidence which satisfies the court that the child's best interests will not be served by an order for equal joint parental responsibility.
In this case the presumption is rebutted. The evidence for that is overwhelming. This is not only because the mother has, in recent times absented herself not only from this case but from treatment for the significant drug abuse and associated problems which she experiences. It is because the evidence supports a finding that notwithstanding her capacity to be a loving mother if she is well, in treatment, and stable and supported, when those preconditions are not met, she is unable to ensure the safety of the child or put the child’s interests ahead of her own.
The child is extraordinarily fortunate to have Ms Easton as her grandmother. The grandmother has effectively been responsible for parenting the child for some years. However hard it may have been for her, she has been forthright in ensuring that the child is safe when with her son, who has also experienced problems arising from drug use and other issues. Her focus at all times has been on protecting the child from risks arising from aspects of her parents’ dysfunctional lives.
The child’s father appears today, unrepresented. He has made it clear he supports the orders sought by the independent children's lawyer and his mother. He has told me that he understands that his time with the child will be subject to him being able to satisfy his mother that he is on the straight and narrow, and satisfying her that the child will be safe with him.
As I said in the course of earlier discussions, a parent is not cut out of a child's life by court orders, even by final orders. In the event that the child’s mother is able to restore her life to a functioning level, and overcome the problems she experiences with drug use and her psychological problems, she could spend time with the child pursuant to these orders. She could also bring an application for other orders; both the father and the paternal grandmother need to understand that. On the current evidence, the prospect of her having a meaningful relationship with the child is not high.
I am satisfied that the orders proposed by both the independent children's lawyer and the paternal grandmother, while varying in detail, have a consistent common theme. The theme is that the child needs to continue to live with her paternal grandmother, with whom she is settled and who has the capacity and commitment to offer her a stable, secure and safe life. The paternal grandmother will monitor the parents’ progress. I am confident she will ensure the child spends time with them, if that is consistent with the child’s safety and wellbeing. The orders proposed will provide an opportunity for the child to have a meaningful relationship with both parents, subject to their capacity to give priority to her needs.
I am satisfied that orders should provide that prior to the mother commencing to have time with the child, she resume a treatment regime and obey the orders of a treating mental health practitioner.
I have noted the concern expressed by Ms T in her latest report about the mother's minimisation of the father's alcohol abuse, and her inquiries about entering into a shared residence arrangement with the father. I have referred to the dilemma the paternal grandmother faces in trying to balance her affection for her son with her responsibilities towards her grandchild. I am satisfied that she is doing that as well as can be expected. I am confident that she will not countenance time with the child if her son is affected by alcohol.
The evidence satisfies me that the paternal grandmother has a close, loving and responsible relationship with her granddaughter. It establishes a strong emotional attachment between them. All the evidence supports a finding that the child should remain with her grandmother, while maintaining, to the maximum extent possible, a relationship with her parents.
During the limited time the child had with her mother, there was positive interaction and the mother expressed a desire to see her more. She will need to work hard to implement that desire. The father has displayed some capacity to prioritise the child’s needs. An illustration is his attendance today. Despite having brought an application for residence himself, he has conceded that it would be best for the child, for his mother to continue in that role.
I am satisfied that the father should retain his share of responsibility for the child’s long‑term care, welfare and development, sharing that parental responsibility with his mother, who I am satisfied will ensure it is exercised in the child’s interests. The grandmother has displayed a capacity to meet the child’s physical and emotional needs. Under very difficult circumstances, she has attempted to facilitate the relationship between the mother and child, and has encouraged the relationship between the child and the father, who lives in the home with them.
In my view, the proposed orders are least likely to lead to the institution of further proceedings as the opportunities for conflict between the parties may be reduced. It is important for the child that these proceedings be brought to an end.
In reaching these decisions, I have placed significant weight on the evidence of Dr E and the evidence of Ms T. I have relied on the affidavits filed by the paternal grandmother and the parties, including the last evidence the mother elected to put before the Court, being the affidavits filed in October 2005.
I certify that the preceding
20 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.
Dated the day of 2007.
…………………………………………
Associate
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as DRURY & LANCE & ANOR
Key Legal Topics
Areas of Law
-
Family Law
-
Evidence
0
0
1