Gartin and Sanders and Ors

[2014] FamCA 440

FAMILY COURT OF AUSTRALIA

GARTIN & SANDERS AND ORS [2014] FamCA 440

FAMILY LAW – CHILDREN –  Where the Mother made no appearance – Where the Maternal Grandparents are given leave to intervene – Where parental responsibility is to be shared between the Maternal Grandparents and the Father – Where the child is to live with the Maternal Grandparents – Risk – Where the child would be at an  unacceptable risk in the care of the Mother.

Family Law Act 1975 (Cth)

APPLICANT: Mr Gartin

1^st RESPONDENT: Ms S Sanders

2^nd RESPONDENTS: Ms M Sanders and Mr A Sanders

INDEPENDENT CHILDREN’S LAWYER: Linda Adcock

FILE NUMBER: BRC 11117 of 2009

DATE DELIVERED: 23 June 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Cleary J

HEARING DATE: 23 June 2014

REPRESENTATION

FOR THE APPLICANT: Mr Gartin in Person

FOR THE 1^ST RESPONDENT: No Appearance

FOR THE 2^ND RESPONDENTS: Mr A Sanders and Ms M Sanders in Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Richards

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

1. Leave is granted to the Maternal Grandparents, Ms M Sanders and Mr A Sanders, to be joined as parties to these proceedings.

2. That the child B, born … 2004, (“the child”) live with the Maternal Grandparents.

3. That the Father and Maternal Grandparents have equal shared parental responsibility for the child.

4. That the Father and Maternal Grandparents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility, regarding the child, as follows:

   (a)      They shall inform the other party about the decision to be made;

   (b)      They shall consult with each other on terms that they agree; and

   (c)      They shall make a genuine effort to come to a joint decision.

5. That notwithstanding the provision of Order 3:

   (a)The Maternal Grandparents will be responsible for the daily care, welfare and development of the child when the child is living with or spending time with them; and

   (b)The Father shall be responsible for the daily care, welfare and development of the child when the child is spending time with him.

6. That the child will spend time and communicate with the Father:

   (a)      at all times and places as agreed with the Maternal Grandparents;

   (b)for two hours each week on a Saturday or Sunday such time not to occur earlier than two months from the date of this Order; and

   (c)unless otherwise agreed, by telephone every Wednesday with the Father to initiate the call to the child.

7. The Father is permitted to attend the child’s football games, football training and other extracurricular activities.  The Maternal Grandparents will provide the Father with reasonable notice including times and venues of where such activities will occur.

8. The Father and Maternal Grandparents will each respectively authorise and direct, by this Order, any school or extracurricular activity that the child may attend, to provide to the Father and the Maternal Grandparents, at the expense of the requesting party:

   (a)information about the child’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and any other document associated with the child’s schooling or extracurricular activities; and

   (b)all information that either party may from time to time seek in relation to the child’s schooling or extracurricular activities.

9. That the Father and Maternal Grandparents will be at liberty to attend upon the school for the purpose of Parent/Teacher nights, school sports days, school fetes and other school activities in which the child is involved including any extracurricular activities.

10. The Maternal Grandparents will not change the child’s school enrolment without the written consent of the Father.

11. That the Father and Maternal Grandparents will be entitled to obtain, and this Order shall act as an Authority for each of them to obtain, at their own expense any and all information from any Medical Practitioner, other health professional and/or any hospital which the child attends, or has attended in the past, for the purpose of treatment.

12. That the Father and Maternal Grandparents will be at liberty to attend upon Doctors or any other medical personnel and/or at the hospital at which the child is treated.

13. That in the event the child becomes ill or seriously injured whilst in the care of the Father or the Maternal Grandparents, that person will notify the other as soon as possible and in any event within 24 hours of such incident and will provide all pertinent details of the illness or injury.

14. That the Father and Maternal Grandparents will keep the other informed of:

    (a)A contact telephone number and email address and any changes in same within 24 hours of such change; and

    (b)The names and addresses of any treating medical or other health practitioner who treats the child and authorise that practitioner to provide the other party with information.

15. That the Father and Maternal Grandparents will after consultation with the child’s medical providers and educators, consider whether the child would benefit from counselling.  The parties will ensure that the child continues to attend counselling as recommended by the counsellor.  It is noted that the child may attend C Psychologists, Town D, for counselling.

16. That the parties will refrain from and are hereby restrained from instigating discussing these proceedings with the child.

17. That during the time the child is spending time with either party they will:-

    (a)Respect the privacy of the other parties and not question the child about the personal life of the other party;

    (b)Neither party will denigrate the other in the presence or hearing of the child and shall use their best endeavours to ensure that no other party denigrates the other in the presence or hearing of the child;

    (c)      Speak of the other parties respectfully; and

    (d)      Not expose the child to domestic violence.

18. That the Mother is to spend time and communicate with the child as agreed between the Father and Maternal Grandparents, provided that such time is supervised.

19. That the Mother is restrained from attending the child’s school or extracurricular activities without the written consent of the Father and the Maternal Grandparents.

20. That the Father and Maternal Grandparents will notify the Mother of the schools attended by the child and will provide to the Mother copies of the child’s school reports upon their issue.

21. The Father and Maternal Grandparents are to forthwith notify the Mother of any serious medical injury or life threatening emergency that the child may suffer and will provide to the Mother details of the treating medical practitioners or other service providers.  This order will be an authority to allow the Mother to discuss with the treating medical practitioners or service provider the child’s condition.

22. That the Mother will notify the Father and the Maternal Grandparents within 7 days of a contact address or email that information pursuant to the Orders above can be provided to her and will notify them of any changes to those details within 24 hours of such change.

23. That the ICL be discharged after a period of 12 months.

IT IS FURTHER ORDERED

1. That the Independent Children’s Lawyer provide a copy of these Orders to E Primary School.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gartin & Sanders and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11117 of 2009

Mr Gartin

Applicant

And

Ms S Sanders

1^st Respondent

And

Ms M Sanders and Mr A Sanders

2^nd Respondents

EX TEMPORE

REASONS FOR JUDGMENT

1. I am asked to make orders for the parenting arrangements for the child B born in 2004, (“the child”). 

2. The father is present and has represented himself throughout the proceedings, including the part-heard hearing before me. 

3. The mother is not present in court today and was unable to be contacted. She did not comply with the direction for the filing of an affidavit in anticipation of the matter being finalised today and tomorrow. She did not participate in the mediation which was organised as a conciliation conference by the Independent Children's Lawyer.  She has communicated with the Independent Children's Lawyer and I am confident that the mother knew that the proceedings were due to be finalised today. 

4. I have heard evidence now from the two applicants, Ms M Sanders and Mr A Sanders, the maternal grandparents of the child.  Having heard their evidence I am satisfied that the arrangements proposed by the orders that the child and his older sister F and his younger brother G live with the maternal grandparents is a good one and in the best interests of the child. 

5. I also consider that the communication which has been established between the father and the maternal grandparents is excellent and that they will genuinely consult with each other about decisions of parenthood that will need to be made for the child over the almost eight years remaining of his childhood. 

6. It may be some time before it would be safe effectively for the child to spend time with his mother.  Evidence supports the view that she represents an unacceptable risk to the child, both physically and most significantly, emotionally. 

7. Accordingly, the orders presented in Court before me today that they have proposed seem entirely satisfactory and represent a great chance for the child to restore his relationship with his father and to have a much safer and more stable childhood in the care of his grandparents.  For that reason I make orders in accordance with the documents entitled “proposed orders”, being paragraphs 1 to 23 of that document and further, I make an order that the Independent Children's Lawyer provide to E Primary School a copy of these orders.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 23 June 2014.

Associate:     

Date:              23 June 2014