G and L and G
[2003] FMCAfam 366
•5 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| G & L & G | [2003] FMCAfam 366 |
| FAMILY LAW – CHILDREN – Interim contact – best interests – child aged four and a half years – mother deceased – extended family (grandparents). Family Law Act 1975, ss.65E, 60B Bright & Bright v Bright & Mackley (1995) FLC 92-570 |
| Applicant: | JAG |
| First & Second Respondents: | S & VL |
| Third Respondent: | SG |
| File No: | PAM 1615 of 2003 |
| Delivered on: | 5 August 2003 |
| Delivered at: | Parramatta |
| Hearing date: | 5 August 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitor for the Applicant: | Mr Jurd |
| Solicitors for the Applicant: | James Papas & Associates |
| Counsel for the First & Second Respondents: | Mr Wilson |
| Solicitors for the First & Second Respondents: | Richardson Burgin Steer |
| Solicitor for the Third Respondent: | Ms Narayanan |
| Solicitors for the Third Respondent: | Narayanan Solicitors & Conveyancers |
| Child Representative: | Mr Harman |
| Solicitors for the Child Representative: | Harman & Co |
ORDERS
That the child CJRL born 7 December 1999 shall reside with the First and Second Respondents S and VL.
That the Father John G shall have contact with C each fourth Saturday from 11.30am until 4.30pm, first such period to commence 9 August 2003 or as agreed between the parties.
For the purpose of the Father exercising contact with C that the First and Second Respondents shall be responsible for transporting C to and from Contact with contact changeover to occur at McDonalds Family Restaurant, Bathurst.
That the Third Respondent Shirley G shall have contact with C each fourth weekend from 1.00pm Sunday, first such period to commence 22 August 2003.
That for the purpose of contact between C and the Third Respondent that:
(a)on the first occasion of weekend contact and each alternate period of weekend contact thereafter, the First and Second Respondents shall be responsible for transporting C to and from contact with changeovers to occur at the McDonalds Family Restaurant, T;
(b)that for the second period of weekend contact and each alternate period thereafter, that the Third Respondent shall be responsible for collecting C from and returning C to the home of the First and Second Respondent.
That in addition to the above periods of contact:
(a)the Father shall be at liberty to attend and exercise contact with C whensoever the Third Respondent is exercising contact at T and as agreed between the Father and the Third Respondent;
(b)the Father shall be entitled to exercise contact at F for such periods as agreed between the Father and the First and Second Respondents from time to time;
(c)the Father shall be entitled to exercise contact with C by telephone at all reasonable times and with reasonable frequency.
That in addition to weekend contact to be exercised by the Third Respondent, that the Third Respondent shall be entitled to exercise contact:
(a)for a block period of five (5) days immediately preceding each third period of weekend contact commencing 1.00pm Monday and extending to 1.00pm the following Friday and such that the Third Respondent then has C in her care for a continuous period of seven (7) days;
(b)by telephone at all reasonable times and with reasonable frequency;
(c)for the purpose of exercising periods of block contact pursuant to this Order the First and Second Respondents shall deliver C to and collect C from the McDonalds Family Restraurant, T and in the event that the period of contact attaching to such block contact would otherwise have required the Third Respondent to travel to F then, for the next period of weekend contact (when the First and Second Respondents would, but for this Order, have been required to travel to T) the Third Respondent shall then collect C from and return C to the home of the First and Second Respondents.
That all persons with whom the child is to come into contact at any time are restrained from consuming alcohol in excess or administering to themselves any prohibited drug or any patent or prescription drugs other than in accordance with directions for use and/or any prescription whilstsoever the child is in their care.
The Third Respondent shall, as soon as practicable, obtain from her treating doctor (Dr O) a written report or certificate (handwritten or otherwise) confirming that in his opinion Ms G is physically able to care for C for a block period of seven (7) days and a copy of such report or certificate shall be provided to the solicitor for each party and the children’s representative and provided that the exercise of such contact is not conditional upon compliance with this Order.
That each party shall keep the other advised of their residential address and a contact or emergency contact telephone number and, in the event that either party proposes to change their place of residence, they shall give to each party twenty-one (21) days’ notice of such intention, and such notice to include the address to which they intend to locate.
That no party shall allow or permit the child, during any period that he is in their care, to have contact or come into contact with Shannon Schultz.
The matter is transferred to the Family Court of Australia at the Parramatta Registry.
The Contravention applications are withdrawn.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 1615 of 2003
| JAG |
Applicant
And
| S & VL |
First & Second Respondents
And
| SG |
Third Respondent
REASONS FOR JUDGMENT
Application
The concern that I have is that this child has been placed in an unfortunate position through the untimely death of his mother. It is certainly of no doing of this little boy who is not yet 4 years of age, that he is where he is. I am mindful of the fact that under section 65E of the Family Law Act my paramount consideration must be the welfare of the child.
The arrangements that are proposed by Mr Harman, the child's representative, are detailed and perhaps complicated but I am satisfied that the arrangements that are proposed are intended to act in the child's best interests.
What is this child's best interest? His best interest is to have a period of stability in a home where people are able to look after him and give him the physical care and the love and affection that he needs. His best interests also involve spending time with people who are significant to him. That includes his father and indeed section 60B of the Family Law Act makes it quite clear that children have a right to be cared for by both parents, where possible, and a right to contact with their parents, unless these things are contrary to the child's best interest.
Children also have a right to spend time with other adults who are significant to them, other members of the extended family. Grandparents are important and Treyvaud J, now sadly deceased, made a point of this in the decision of Bright v Bright, andBright v Mackley (1995) FLC 92-570, where His Honour expressed the opinion that it is usually in a child's best interests to know that he or she is part of a wider family and have the ability to spend time with grandparents.
I think that accords with the general thinking in our society.
The matter is complicated by the distance that is involved between the residences of the various parties, that the maternal grandmother, Ms G, who it has been put to me has been a significant part of this child's life, lives in T on the New South Wales Central Coast.
The First and Second Respondents, Mr and Mrs L, live in F in what is described as the Central West of New South Wales. If one would look at a map it is really the Central East but I think it is fair to say that the distance from Sydney to F is at least 350 kilometres. Ms G lives in T, which is a further distance.
The Second Respondent, Mrs L, suffers from the unfortunate affliction of what is commonly referred to as a "bad back" and a long drive would be difficult and uncomfortable and at times painful for her. There is also the concern that she will need, from time to time, to take time off work.
She and her husband have a property and like many properties west of the Blue Mountains it has been hit by the prevailing drought.
At the same time the proposal requires some sharing of the travel and Ms G, maternal grandmother, will also be required to undertake some of the travel. She has her own difficulties about travelling on public transport having been a victim of crime at a railway station. Courts should not underestimate the effect on people who are victims of criminal acts. I note that legislation has been changed in New South Wales so that victims of crime may now read victim impact statements.
In order for Ms G to travel to F by public transport she will have to journey for a lengthy period by bus, and I am mindful that the travel would impose some burden upon her. I am satisfied that it is important for this child to have contact with his maternal grandmother just as it is important for him to have regular contact with his father. It is pleasing to note that Mr and Mrs L and Mr G have worked out cooperative arrangements so that C can spend time with his father and that is to the credit of both parties.
There is going to be a final hearing when all of these matters must be investigated in detail and it will require some detailed evidence.
The orders that are proposed are interim orders and in whichever Court this matter is heard I would anticipate that the matter would take some period of time to be heard. That being said, I am confident that the when the matter is heard by the judicial officer, it will be resolved and the orders made will reflect what the Court sees to be in the best interests of the child.
It is unlikely that the arrangements that I proposed on an interim basis would continue unchanged after the matter has been heard on a final basis, however there is a need for orders to be put in place to maintain this child's relationships until the final hearing.
I note the concerns raised by the First and Second Respondents, but I am also mindful of the burden on other parties. At this stage I am satisfied that the contact arrangements proposed by Mr Harman with the amendments he suggested in respect of the dates, and agreed to by Mr Jurd and Ms Narayanan, respectively, are ones that I propose to make on an interim basis.
Further, the parties present here today have sought an order specifically requiring the child NOT to come into contact with, or be in the presence of a Mr SS, as I am led to believe there is an involvement of violence concerning this man. I am prepared to make such an order as I am satisfied that it would be in the child’s best interest not to have contact with or be in the presence of Mr S at any time. I propose to make that order.
The length of time this matter requires for hearing will necessitate the matter being transferred to the Family Court of Australia at Parramatta. I propose to make an order to transfer the proceedings.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 28 August 2003
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