Garland and Wharton and Ors (No. 2)

[2007] FamCA 1419

FAMILY COURT OF AUSTRALIA

GARLAND & WHARTON AND ORS
(NO. 2) [2007] FamCA 1419

FAMILY LAW – PRACTICE AND PROCEDURE – Case management – Adjournment of proceedings to await outcome of child protection proceedings

Family Law Act 1975 (Cth)
Children, Youth & Families Act 2005

APPLICANT: Mr Garland

FIRST RESPONDENT: Ms Wharton

SECOND RESPONDENT: Ms W

THIRD RESPONDENT: Mr S

FOURTH RESPONDENT: Ms C

INDEPENDENT CHILDREN’S LAWYER: Nicole Inglis

FILE NUMBER: CAC 664 of 2007

DATE DELIVERED: 30 November 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 30 November 2007

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE 1^ST RESPONDENT: Ms Sparks

SOLICITOR FOR THE 1^ST RESPONDENT: Victoria Legal Aid

THE 2^ND RESPONDENT: No Appearance

COUNSEL FOR THE 3^RD RESPONDENT: Ms Sparks

SOLICITOR FOR THE 3^RD RESPONDENT: Victoria Legal Aid

THE 4^TH RESPONDENT: In person

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms Inglis

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Morrison & Sawers

Orders

1. That I grant leave to Victoria Legal Aid at S to withdraw as solicitors on the record for the third named respondent father, Mr S, noting that he is not otherwise represented at this mention. 

2. That this matter be adjourned for further telephone mention at 5pm on
   11 December 2007, when the applicant, Mr Garland and the fourth named respondent, Ms C are to be contacted at the alternative telephone number of …. 

3. That, in the event that the second respondent Ms W and/or the third respondent father Mr S do not appear at the next mention of this matter on 11 December 2007, I may treat any application or orders sought by them as having been abandoned and may proceed to dismiss any such application/responses/request and direct that their names be removed from the title of these proceedings. 

4. I DIRECT  that the independent children’s lawyer apply to Victoria Legal Aid for an extension of assistance such as will enable her to attend the Children’s Court on 10 December 2007 and observe the proceedings in relation to the children L born … February 1997 and T born … February 1998.

5. I DIRECT that until the third respondent father, Mr S files a Notice of Address for Service to the contrary, his address for service be noted in the records of the court as …, South Australia, ….

6. I DIRECT that a copy of this Order be sent to Elizabeth Malone, solicitor of the Department of Human Services, … under cover of a letter requesting that a copy of any report upon which the Department of Human Services propose to rely in relation to its protection application returnable in the Children’s Court at S on 10 December 2007. 

7. I DIRECT that my Associate send by facsimile to the applicant, Mr Garland and the fourth respondent, Ms C to … and to the independent children’s lawyer at … and to the first respondent mother to … a copy of the letter dated 22 November 2007.

8. I DIRECT that my reasons for judgment this day be transcribed and when transcribed a copy be sent to all parties and the Department of Human Services, to the attention of Elizabeth Malone, such reasons to be ordered as a matter of urgency.

AND THE COURT NOTES:

A.That the independent children’s lawyer informs the court that Mr S’ address is …, South Australia, ….

B.That by letter dated 22 November 2007 the Department of Human Services for the … Region advised that following the intervention request made on 25 October 2007 the Department of Human Services has instituted proceedings in the S Division of the Children’s Court being a protection application in respect of the two children.  The proceedings were instituted on 20 November 2007, the next Children’s Court hearing date for this matter is 10 December 2007.  There are no interim Children’s Court Orders at this stage, however the Department is seeking that the children reside with their mother, the first respondent, Ms Wharton on a 12 month supervision order.  For this purpose a copy of this Order will be sent to the author of the letter Elizabeth Malone, solicitor, … Region, Department of Human Services, PO Box …. 

C.That the fourth respondent, Ms C has informed the Court that she has been trying to contact the children by telephone without significant success and she wishes to make contact with them. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: CAC 664 of 2007

MR GARLAND

Applicant

And

MS WHARTON  

First Respondent

And

MS W  

Second Respondent

And

MR S  

Third Respondent

And

MS C

Fourth Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This matter comes before me by way of telephone mention, it being the case that there are six parties to these proceedings none of whom are Melbourne based. The proceedings concern the children, L, born in February 1997, and T, born in February 1998.  These reasons explain why I have adjourned the matter to 11 December 2007 for further mention and why, in the meantime, the preparation of any family consultant report should remain on hold. 

2. On 25 October 2007, the court was informed that the children were in a state of crisis in relation to their educational requirements. I made a referral pursuant to s 91B that the Department of Human Services (“DHS”) intervene in the proceedings. 

3. DHS has not intervened.  However, by a letter dated 22 November 2007 from Elizabeth Malone, solicitor for the Department of Human Services, the court has been advised as follows:

   I refer to the intervention request filed in relation to the above family law proceedings received by this office of the Department of Human Services on 5 November 2007 and advise that:

   · the matter has been investigated

   · protection application proceedings have been instituted in the [S]         division of the Children's Court on 20 November 2007.

   The next Children's Court hearing for this matter is on 10 December 2007. There are no interim Children's Court orders. However, the department is seeking that the children reside with their mother, [Ms Wharton], on a 12-month supervision order. The Department of Human Services will not be appearing at the Family Court on 30 November.

4. The parties to the proceedings who appear by telephone today are as follows:

   a)Mr Garland, who is the cousin of the children L and T.  He resides in Canberra, in the home of his mother, Ms C, who is the fourth respondent in these proceedings.  He and his mother have a common interest but it is Mr Garland who seeks the orders that the children live with him.  His mother, Ms C, would be of some support to him.  He says that he and his mother reside in a five-bedroom house in Canberra but, if he were to obtain orders that T and L live with him, he would be immediately entitled to three-bedroom accommodation under an emergency housing scheme. 

   Mr Garland instituted these proceedings in April 2007 and then did not pursue the proceedings because, he says, he believed that his aunts, who are his father's sisters, Ms Wharton (the mother of T and L) and Ms W (the maternal aunt of T and L) would look after the children in S. Now, he says that it appears that his aunties have failed and both he and Ms C say that they will not let matters rest.  Mr Garland and his mother say that they will now obtain legal advice (again) with a view to pursuing Mr Garland’s application to have T and L live with him, in Canberra, on a full‑time basis. 

   b)The mother is the first respondent, Ms Wharton. She resides in S. She is represented by Victoria Legal Aid (“VLA”). They appear on her behalf today although they are not in receipt of up to date instructions.  VLA have notice from the DHS of the protection proceedings, that notice having been received on 28 November 2007.  However, over the last two days, they have not been able to contact the mother, Ms Wharton. VLA anticipates appearing on behalf of the mother on 10 December 2007 when the matter is returnable in the Children's Court at S. 

   c)The second respondent is Ms W who is the maternal aunt of L and T.  She is not represented today, nor did she attend or appear at court on 25 October 2007. She is named in earlier orders as a person who is contemplated to be able to care for the children but as she has not participated in the proceedings today or on the occasion before that. If she does not participate at the next mention before me, I may dismiss any application she has before the court, summarily as opposed to on its merits. 

   d)Mr S is the third respondent and the natural father of L and T. He previously had VLA at S acting for him. VLA no longer act for him.  Whether or not VLA has filed a notice of ceasing to act, I have given VLA leave to withdraw as his solicitors on the record as of today. 

   The court is advised by Ms Inglis, the independent children's lawyer, that the father is currently in South Australia.  He is ill.  He is unlikely to participate in the proceedings but his address is …, or that is as much as the independent children's lawyer knows.  He does not participate in the proceedings today and did not on 25 October 2007. 

   e)The fourth respondent is Ms C. She is married to Mr F Wharton. She and Mr F Wharton have two children. There is Mr Garland, who is the applicant in these proceedings and V, her daughter. For ease of communication, Ms C has given a telephone number for herself which is a mobile number and a facsimile number. However, sometimes the mobile telephone service of Ms C does not work. She has specifically requested that the next hearing on 11 December 2007 be by telephone and that the connection be made to her daughter's number because V has a speakerphone facility. So that call will have to be placed to V, whose telephone number is …. 

   f)Finally, there is the independent children's lawyer, Ms Inglis, of Morrison and Sawers Lawyers. She was not aware of the protection application taken out by DHS.  She has, however, been corresponding with DHS and the children’s school. 

5. Both children are in grade 5 at D Primary School.  When I asked the mother's solicitor about the children's attendance at school, she indicated she was instructed that the children were going regularly to school and seeing their maternal aunt, Ms W, probably on a daily basis.  

6. The discussions of the independent children’s lawyer and the school, in particular the principal, indicate that the children's attendance at school is abysmal and that in late October 2007, T was suspended.  The principal reports that the children come to school generally dressed adequately and generally have their lunch. T has been suspended, I assume for unacceptable behaviour. 

7. L, when she attends school, is required to take a separate recess from other students due to her unacceptable behaviour. I am informed that L can have one friend with her and she is supervised by a staff member for the duration of recess. 

8. The school has advised the independent children's lawyer that the school has offered to provide counselling but the mother has refused to undertake any counselling by herself or with the children. 

9. As far as the school is concerned, it is unclear whether the children are residing primarily with the first respondent mother, Ms Wharton, or the second respondent aunt, Ms W. The principal advised the independent children’s lawyer that it is often the aunt who brings them to school when they go to school. 

10. All parties agree that these proceedings in this court should await the outcome of the Children's Court proceedings on 10 December 2007, when an interim order may be made under the Children, Youth & Families Act 2005 (Vic).  In the event that such an order is made, this court may not have jurisdiction to make orders in relation to L and T. 

11. In the event that an interim protection order is not made in the Children’s Court, this court would retain jurisdiction.  If that is so, this matter would seem to be a matter which should be accorded some priority in our listing system but it does not necessarily follow that the proceedings could be heard before the middle of 2008 given the resources of the court and the need to undertake assessments by a social scientist such as a family consultant from our Chid Dispute Services. 

12. On 25 October 2007 I made various orders including the following:-

    3. That pursuant to section 62G (2) of the Family Law Act 1975 the parties and children [L] born […] February 1997 and [T] born […] February 1998 attend upon a Family Consultant nominated by the Director of Child Dispute Services in the Melbourne Registry of this Court for the purposes of the preparation of a Family Report to be made available to the Court and the parties. The parties to comply with all reasonable directions as to attendance upon the said Family Consultant as and when required by the said Family Consultant. Such report to be commenced not earlier than December 2007 and any face to face interviews for that report be conducted in [S], noting that the following persons are currently parties to the proceedings:-

    (a)[Ms Wharton] who is the biological mother and who pursuant to orders made 17 July 2007 is the person with whom the children are to live.  She lives in [S];

    (b)[Ms W] who is the maternal aunt who pursuant to paragraph 2 of the Orders made on 17 July 2007 is a person who is envisaged as responsible enough to personally supervise the children.  She lives in [S];

    (c)[Ms S] the biological father who lives in […], South Australia;

    (d)[Mr Garland], the applicant cousin of the children, who resides in Canberra, ACT;

    (e)[Ms C] who is the mother of the applicant [Mr Garland] who also resides in Canberra.

13. At that point, it appeared that Mr Garland and Ms C did not want to participate in the proceedings. That has now changed. Accordingly, it would not necessarily be appropriate for them to have to travel to S to be assessed by a family consultant. 

14. Mr Garland and Ms C reside in Canberra. At first blush, they appear to represent a viable alternative to the mother and as primary caregivers of the children. That being the case, it would be important that they be assessed personally in their home environment of Canberra.  This may be one of the rare cases when a home visit is required.  My preliminary view is that it would not be adequate for them simply to travel to a convenient spot such as Melbourne or S for the purpose of an assessment.  However, S is the home of the mother and the maternal aunt and where the children currently reside. There is evidence which would need to be adduced from various bodies in S, including D Primary School and one would assume medical or like professionals who have been involved with the children. It looks as though part of the assessments for the family report would have to be done in S. If the impression which I have been given is correct and the mother and aunt are not able to attend Melbourne for a hearing, it is likely that any final hearing in this court would need to be done in S which is the locale of various professional witnesses too.  Anyway, these comments are merely speculation and the threshold point at this stage is whether these proceedings will continue given the protection application which is before the Children’s Court on 10 December 2007. 

15. I will list the matter for further mention at 5pm on 11 December 2007. 

16. Participation by all parties and their practitioners on 11 December 2007 will be by telephone as it is today. By that time, it is hoped that all parties will be aware of the outcome of the Children's Court proceedings. 

17. I request that the independent children's lawyer apply for an extension of assistance from Victoria Legal Aid, such as will enable her to attend court on 10 December 2007 and to observe the proceedings and otherwise liaise with the department. 

18. Insofar as the DHS is concerned, I note that they are not intervening in the proceedings in this court.  However, it would be of assistance to this court, and I am sure to each party to the proceedings, if DHS would release its investigative report in the protection application in the event that the Children's Court proceedings do not result in interim orders on 10 December 2007. 

19. The fourth respondent, Ms C, has informed the court that she has been trying to contact the children by telephone without significant success and that she wishes to make contact with them.  I merely note her comments. 

20. This concludes my reasons. Transcription should be expedited and a copy be made available to DHS which, otherwise, may not be aware of the cousin and aunt as alternative carers albeit located outside Victoria. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate

Date:  6 December 2007