Flint and Dawes

[2015] FCCA 3548

FEDERAL CIRCUIT COURT OF AUSTRALIA

FLINT & DAWES [2015] FCCA 3548

Catchwords:
FAMILY LAW – Parenting – undefended hearing – mother deceased – children have special needs – orders confirm arrangements where paternal grandparents have been caring for children for significant period.

Applicant: MS FLINT

Respondent: MR DAWES

File Number: MLC 7576 of 2015

Judgment of: Judge Harland

Hearing date: 22 December 2015

Date of Last Submission: 22 December 2015

Delivered at: Melbourne

Delivered on: 22 December 2015

REPRESENTATION

Counsel for the Applicant: Ms West

Solicitors for the Applicant: Melton Law Offices

The Respondent: No appearance

ORDERS

1. All previous orders be discharged.

2. The applicant have sole parental responsibility for the children X born on (omitted) 2009 and Y born on (omitted) 2010 (“the children”).

3. The children live with the applicant.

4. The children spend supervised time, or otherwise with the respondent as agreed between the parties from time to time.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7576 of 2015

MS FLINT

Applicant

And

MR DAWES

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This application comes about in very sad circumstances.  The paternal grandmother brought an application on 12 August 2015.  She is the paternal grandmother of two little boys, X, born (omitted) 2009, now six years old, and Y, born (omitted) 2010, now aged five.

3. These two little boys have lived with their paternal grandparents for most of their lives.  Their parents lived with the paternal grandparents from 2009 to July 2011.  Their parents separated in February 2012 and the mother and children returned to live with the paternal grandparents at that time.  Tragically, the boys’ mother was diagnosed with breast cancer in 2011.  She was diagnosed with secondary cancers in 2015 and, tragically, passed away on (omitted) this year.

4. Both children have autism.  The oldest child also has ADHD and the youngest child had ADD, and both have epilepsy.  Neither of the children are fully toilet trained, and the children have special needs, which the paternal grandparents have been meeting.  They see a psychologist fortnightly, a paediatrician and specialists every three months and they see a speech pathologist once a month. 

5. It is quite clear from the material filed that the extended family of the mother support the paternal grandparents remaining the carers of these two children, which has been the situation for some time now.  When the mother was very ill and dying, the paternal grandparents looked after her at home, providing palliative care when it was necessary.  It is clear that the two families are united in what is best for these children, except for their father.

6. It must be difficult for the paternal grandparents to bring an application that is essentially against what their son wants, but it also seems clear from the evidence from the grandparents, and the grandmother in particular, and she has given some further evidence today at my request, that their son is not able to provide for the children’s emotional, psychological and physical needs in the way that his parents can.  This does not mean he does not love his children, but he just does not have that capacity.

7. The father attended Court on the first occasion that this matter was listed for mention and that was on 7 October 2015.  He was directed to file material by 9 November 2015 and the order provided for him to spend overnight time with the children each weekend.

8. The father did not attend Court on the next occasion on 7 December 2015 and the matter was listed for an undefended hearing today.  The father was called outside Court at 9:08am today and there was no appearance.  The matter was listed at 9:00am.  It is now 9:25am and he has not attended.

9. It is likely that he has not received the most recent affidavit and amended application, because he had moved house, and the grandmother does not know where he is currently living.  The grandmother also gave evidence that the last time he had any contact with the children was four weeks ago when he attended the home.  He told the children that he was going to his car to get his cigarettes and his drink but did not come back to the house.  He left his belongings at his parents’ house.  Since then he has not been in contact.

10. The paternal grandmother changed her application to seek that the father spend supervised time with the children after an incident that occurred at his home, where he was held at knifepoint and robbed.  This was apparently carried out by ex-employees of his ex-partner who thought they were owed money. The grandmother is concerned about the children’s safety in his care and, of course, at the moment does not know where the children would be if he was to turn up and take them.

11. The other concerning aspect is that the father does not accept that these children have any special needs in the face of medical evidence to the contrary, as well as simply interacting with them.  The grandmother annexes a letter from the children’s speech pathologist, Ms P, dated 4 June 2015, where she confirms that both children have autism, that they both have speech and language difficulties, and that they have reduced social, emotional awareness and difficulty in regulating their emotions.  This means they have trouble playing cooperatively, which means they have trouble socialising with other children. 

12. It is to both the paternal grandmother’s and the paternal grandfather’s credit that they have stepped in in the way they have and provided for these children and provided the mother with the support that she needed before she passed away. It is quite clear that the mother’s extended family also appreciate that support.  The maternal grandparents live in Brisbane.  They are in frequent contact with the paternal grandparents and the children.

13. The mother expressed a wish for the paternal grandparents to remain the carers for the children.  That of course does not bind me, but I think it is reflective of the role that the paternal grandparents have had in these children’s lives.  The mother has also left funds in trust, managed by her mother, to provide for the children’s education, and the paternal grandmother has enrolled the children, with the support of the maternal family, in a private catholic school which has an autistic program, which should benefit the children.

14. One issue that is really important for these children in particular, but for any children who have suffered a loss of a parent, is that they have stability, but also children with the special needs of these children also need stability and routine.  It is clear that that is well provided for in the grandparents’ home and that whilst the grandmother is the applicant in this case, it is clear she also has the support of her husband, who also filed an affidavit.

15. The paternal grandmother works shift work, and the paternal grandfather is retired and so is able to be at home with the children.  It is also clear that the grandfather is providing an important male role model for the children and both grandparents refer to the boys enjoying having “man time”, so it is important that they are able to have that role model.

16. I have no doubt at all that the orders that the grandmother seeks are in the children’s best interests and I am going to award the grandmother sole parental responsibility for the children.  It is important that she be able to make the decisions that are necessary for their long-term well-being.  That means being able to enrol them in schools, being able to arrange their health care and the like.  Given the father’s attitude, she is just not going to be able to do that if there is equal shared parental responsibility because the father is not accepting of the children’s needs and is not consistently in their lives nor involved. That will be the first order I make. 

17. The second order that I will make is that the children live with the applicant.

18. The third order will be that the children spend supervised time or otherwise with the respondent as agreed between the parties from time to time.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  18 January 2016