Glenn & Turner

[2008] FamCA 1181

FAMILY COURT OF AUSTRALIA

GLENN & TURNER [2008] FamCA 1181

FAMILY LAW – CHILDREN – With whom a child should live – interim hearing - mother died in November 2008 - competing applications between the maternal grandmother and the father – orders made in previous proceedings providing that the child live with the mother and that the child spend increasing periods of time with the father – mother lived with maternal grandmother since January 2006 - further Family Assessment Report required - child’s emotional wellbeing will be ensured by regular and meaningful contact with the applicant and respondent father – to minimise emotional upheaval until the Court receives further reports, no departure from previous orders

Family Law Act 1975 (Cth)

APPLICANT: Mrs Glenn

RESPONDENT: Mr Turner

FILE NUMBER: ADC 4553 of 2008

DATE DELIVERED: 9 December 2008

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: BURR J

HEARING DATE: 9 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lewis

SOLICITOR FOR THE APPLICANT: NORMAN WATERHOUSE

COUNSEL FOR THE RESPONDENT: Mr Boehm

SOLICITOR FOR THE RESPONDENT: MARTIN ROBINSON

Orders

1. That the Directions hearing listed before the Registrar at 10.30 am on Thursday 22 January 2009 be vacated.

2. That further consideration of the proceedings be adjourned to 9.30 am on Wednesday 18 March 2009 before the Honourable Justice Burr.

3. That pursuant to Section 68L of the Family Law Act 1975 as amended the child … born … August 2002 (“the child”) be independently represented and that such representation be arranged by the Legal Services Commission of South Australia and that to expedite the appointment of the Independent Children’s Lawyer within three (3) days of the date hereof each party do cause to be furnished to the said Commission a copy of all documents filed herein by that party.

4. That within seven [7] days of the date hereof the father do file and serve an affidavit annexing the Initiating Application and affidavit filed by him in the Federal Magistrates Court.

5. That pursuant to Section 62G(2) of the Family Law Act 1975 as amended family consultant Dr A provide to the Court a report on such matters as are relevant to these proceedings in respect of the child’s general circumstances, but in particular:-

   (a)whether he should live with the applicants or the respondent father, both as to the immediate future and the foreseeable long term future;

   (b)what time he should spend with the other relevant adults in his life, both as to the immediate future and the foreseeable long term future;

   (c)observed interaction between the child and the father, the applicant maternal grandmother, the maternal aunt and if possible, the late mother’s other two sons T and N;

   (d)the importance of the child continuing with his therapy and counselling by Ms O and the importance of the father’s involvement in that process;

   (e)schooling or other relevant educational issues

   and that such report be prepared and released to the parties and to the Independent Children’s Lawyer by no later than 4.00 pm on Friday 13 March 2009.

6. That the Applicant file and serve an affidavit or report of Ms O indicating:-

   (a)the therapy or counselling undertaken by her with the child;

   (b)her views as to his progress and the need for ongoing counselling;

   (c)her views as to the necessity or otherwise of involving the father in that counselling process; and

   (d)her views as to what future or other counselling, therapy or support the child may require

   and that such affidavit be filed and served by no later than 4.00 pm on Friday 16 January 2009.

DURING THE PERIOD OF THE ADJOURNMENT:-

1. The child live with:-

   (a)the father from 5.30 pm on Tuesday 16 December 2008 until 3.00 pm on Thursday 25 December 2008;

   (b)the father from 5.30 pm on Thursday 1 January 2009 until 5.30 pm on Saturday 10 January 2009;

   (c)the applicant maternal grandmother at all other times, save as to the periods of time the child is to spend with the father pursuant to the Orders of the Honourable Justice Bell dated 3 May 2007.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4553  of 2008

MRS GLENN

Applicant

And

MR TURNER

Respondent

REASONS FOR JUDGMENT

1. I have before me today competing applications between the maternal grandmother on the one hand, and the father on the other hand, as to with whom the child born in August 2002 should live. 

2. The child’s mother, after a long illness, regrettably died in November 2008.  After that time there were a number of relatively unpleasant scenes and exchanges as between the present applicant and the father.  The truth of the events of those days will likely only be determined once this matter goes to trial if indeed the parties are unable to resolve their differences earlier.

3. My obligation under the legislation is to treat the child’s interests as being the paramount consideration and in doing that, I am guided to Section 60CC of the Family Law Act. That Section requires me to consider a raft of provisions including primary considerations and additional considerations. The two primary considerations are:-

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;

1. Clearly the relevance of this provision now is as to the benefit of the child having a meaningful relationship with the applicant, her other extended family members and the father.

2. Earlier proceedings went to trial before Bell J last year and on 3 May 2007 he delivered reasons and made Orders that placed the child in the care of the mother and then provided for the father to have increasing periods of time with the child resulting ultimately, and as was the case as I understand it just prior to the mother’s death, in the child spending time with him from 5.00 pm on the Friday until 5.00 pm on the Sunday of each alternate weekend and then from 5.00 pm on the Thursday until 5.00 pm on the Friday during the intervening week.  In addition he was to have one-half of all school holiday periods.  Special provisions were made in relation to Christmas, Easter, Father’s Day and Mother’s Day.

3. I am mindful of the Court’s obligation to establish what relationships it is important for the child to maintain in a meaningful sense.  There is unlikely to be any dispute between the parties despite their disagreement in so many other areas, that it will be important for the child to maintain meaningful relationships with the applicant and with the father.

(b)the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.

1. Neither party puts any matters before me which would suggest that these are matters for the Court’s consideration, certainly at this interim stage.

2. I now need to turn to the additional considerations, namely:-

(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes;

1. There are no views before the Court presently upon which I believe I should rely.  Any of the expressed wishes of the child as indicated to me by the parties in their affidavits need be the subject of testing and scrutiny.  It is likely though that the child, given his lengthy and important exposure to both the applicant and the respondent, would be of the view that he ought to be significantly involved in the lives of each of them. 

2. However, it is important for me to determine those views more accurately and for that reason I propose ordering a further Family Report.  There have been many changes in the child’s life since the last of the reports and it is important that the Court operate on current information before making such important orders impacting upon the child’s life.

(b)the nature of the relationship of the child with:

(i)each of the child's parents; and

(ii)other persons (including any grandparent or other relative of the child);

1. This will become a particularly pertinent and relevant consideration when the Court makes its final determination as to what is best for the child.  He has important relationships with his maternal aunt, his maternal grandmother, other members of their family and obviously with the father and his family.  Some additional insight into the importance of those relationships to the child will emerge from the Family Report.

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

1. This will be an issue here as between the applicant and the father.  Each of them has made allegations that the other has not demonstrated that requisite willingness and ability, particularly in the unfortunate circumstances surrounding the mother’s death. 

2. The father’s actions, as I have indicated today, in involving the police at that difficult time for the child on any preliminary view of the matter, were not child focussed and demonstrate some inability on the father’s part to have regard to the importance of the close relationship the child would have developed with the applicant and of the difficult time that he was encountering.  The father, as the evidence may well indicate, could well have been entirely properly motivated and may well have been subjected to some unfair responses by the applicant leading to his actions.  Thus I maintain an open mind as to the reason why he did it.  It just appears on the surface of it to have been an unfortunate response to the circumstances that faced the child at the time.

(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. This too will clearly be a particularly relevant provision.  It requires the Court to make further investigation before making any significant changes in the child’s life.  His present life is one in which he has grown accustomed to living with the maternal grandmother, his mother having lived with her since January 2006.  Thus a change from the maternal grandmother’s household to the father’s household as proposed by the father is a material change in his circumstances and is likely to have impact and effect.  The Court needs to know what those likely effects and impacts are going to be.

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

1. This sub-section is not relevant.  Given the close proximity of the parties in terms of where they reside, there should be no practical difficulty or expense in the child spending time with all relevant adults.

(f)the capacity of:

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

to provide for the needs of the child, including emotional and intellectual needs;

1. I have dealt with some of the issues that arise pursuant to this sub-section in my earlier treatment of the other sub-sections.  It though is a matter that will require further investigation.  It will require investigation not just through further expert reports but in terms of reports from the child’s school and from the psychologist Ms O who he has been seeing and who I accept has been supporting the child in a number of issues that the child has had to deal with, specifically deaths in the family and then most recently the death of his mother.

(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

1. These matters will emerge from further expert evidence and other evidence as the matter proceeds towards trial or to amicable agreement between the parties.

(h)if the child is an Aboriginal child or a Torres Strait Islander child:

(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture): and

(ii)the likely impact any proposed parenting order under this Part will have on that right;

1. This sub-section is not relevant for my consideration.

1. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

1. I do not think it is necessary for me to say anything further about this particular sub-section.  Similar matters have been identified by me when dealing with earlier sub-sections, particularly sub-sections (b), (c) and (f).

(j)any family violence involving the child or a member of the child's family;

and

(k)any family violence order that applies to the child or a member of the child's family; if:

(i)the order is a final order; or

(ii)the making of the order was contested by a person;

1. These sub-sections are not relevant for my consideration.

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

and

(m)any other fact or circumstance that the court thinks is relevant.

1. These are matters that in my view are more relevant for the Court’s consideration within the context of the final trial proceedings.

2. Sub-section (4) requires me to consider:-

3. Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

   (a)has taken, or failed to take, the opportunity:

   (i)     to participate in making decisions about major long-term issues in relation to the child; and

   (ii)    to spend time with the child; and

   (iii)   to communicate with the child; and

   (b)has facilitated, or failed to facilitate, the other parent:

   (i)     participating in making decisions about major long-term issues in relation to the child; and

   (ii)    spending time with the child; and

   (iii)   communicating with the child; and

   (c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

4. On an interim basis, no further consideration of this sub-section is appropriate.

5. The other relevant provisions of the Act, particularly Section 61DA and Section 65DAA are, in my view, matters more relevant for the final determination that may be required of the Court.

6. That leads me to the specific interim applications that are before me.  The first of the disputes between the parties is as to with whom the child is to spend time during the upcoming Christmas school holiday period.  Each of the parties proposes that he spend regular and generous time with the other.  They are not in agreement as to the dates that it should operate.

7. The father puts to me that whilst the child’s mother was alive he had reached agreement with her which he says is recorded in the communication book they maintained as to block periods of time that accommodated his employment needs. I am informed that in order to fit in with his employment, his employment being that of a nurse, it would mean that the child should be with him from 5.30 pm on 12 December until 3.00 pm on 25 December 2008 and then from 5.30 pm on 1 January until 5.30 pm on 10 January 2009.

8. The applicant is proposing that the child essentially spend week and week about with the father.  She argues that given the trauma of recent events for the child and the need for him to be supported by counselling, that few dramatic changes should be made at this time.  The familiarity for the child largely in terms of his living arrangements are with his maternal grandmother and I am further informed that the maternal aunt has stepped into the breach after the mother’s death and undertaken much of the schooling and other support roles that the child needs.

9. I accept that a measured approach is the best for the child.  Within the context of the extremely dramatic changes in his life which he has had to encounter, I believe it is my obligation to craft orders that have a minimal impact upon his emotional wellbeing.  His emotional wellbeing, I think, will need to be ensured by regular and meaningful contact with the applicant and the respondent father.  I do not have any particular insight until I receive the Family Report as to what might yet be best for the child, but given that I believe that it is appropriate that there is this measured approach in order to make the child’s life as easy as possible in these different circumstances, I am satisfied that it is appropriate to order that the child live with his father from 5.30 pm on Tuesday 16 December 2008 until 3.00 pm on Thursday 25 December 2008.  In relation to the issue of Christmas Day, I note that Bell J on 3 May 2007 made orders that contemplated that the child would be with his father until 3.00 pm on Christmas Day this year and I see no reason to change that.  I further Order that the chdild live with the father from 5.30 pm on Thursday 1 January 2009 until 5.30 pm on Saturday 10 January 2009, and that the child live with the applicant at all other times.

10. The parties are also in dispute about a school excursion which is to take place on Thursday 11 December 2008.  The father contends that he ought to be the one who should accompany the child at that time.  The contention is supported by the fact that he has had regular unsupervised time with the child for a lengthy period of time now.  There have been no allegations put by the applicant that would suggest that his attendance is inappropriate for any reason other than that the maternal aunt has taken up the mantle of attending at the child’s school on a regular basis to assist him with his schooling since his mother’s death.  It is the applicant’s contention that in order to further advance the measured approach to the necessary changes in the child’s life that the maternal aunt ought to accompany him on that day.  However the most significant person in the child’s life eventually is likely to be his father.  There will necessarily, in my view, be extensive involvement by the applicant in the child’s life.  However, he has only one biological parent still living and it will be important for his development and sense of wellbeing that he maintain a close, loving and meaningful relationship with his father and that ought to be ultimately encouraged provided all of the other indicators are that emotionally he will be safe in that progression.  In my view therefore an appropriate part of that progression would be for the father to accompany the child on that school excursion.  (Discussion ensued.  Noted on the transcript that the father will attend at the school at 9.15 am on Thursday 11 December 2008.  Maternal grandmother will deliver the child to school that morning with the usual arrangement that the child remain with the father until the commencement of school on Friday morning.  No order needed.)

11. I make the usual order for the appointment of an Independent Children’s Lawyer and that within three [3] days the parties provide copies of all the documents filed by them.  I further order that within seven [7] days the father do file and serve an affidavit annexing the Initiating Application and affidavit filed in the Federal Magistrates Court.

1. The parties are in general agreement that a further Family Report is appropriate to guide themselves to a potentially negotiated outcome or the Court to a litigated outcome. However, again they are unable to agree as to who should prepare the report. Dr A prepared two previous reports in the matter. The father urges me to order that somebody other than Dr A prepare the envisaged and about to be ordered report. Expressed rather eloquently by his Counsel, the predominant position he puts to the Court is that he would like to be able to approach negotiations with the applicant and the proceedings generally with confidence and with the knowledge that his views have been respected and properly put before the Court. I was unkind enough to suggest that expressed another way, it was the father indicating that he did not like Dr A’s recommendations in the earlier reports and wished to avoid her at all costs for that reason alone. I accept that there may well be some quite legitimate other reasons that he has for requesting of the Court that somebody other than Dr A prepare the report. However, in my view the most compelling issue for me in determining who should do it are those matters put to me by Ms Lewis for the applicant which are to the effect that Dr A will now be the only report writer who will be in a position to give evidence to this Court who will ever have met the mother, have observed interactions between the child, the mother and other relevant adults and be in a position to give evidence about that. It is important therefore that the Family Consultant be able to factor those matters and issues into any subsequent report, observations and recommendations. I therefore make the usual order pursuant to Section 62G(2) that there be a further Family Report prepared in the matter and that it be prepared by Dr A and that such report consider the child’s general circumstances but in particular:-

   (a)whether he should live with the applicant maternal grandmother or the respondent father, both as to the immediate future and the foreseeable long term future;

   (b)what time he should spend with the other relevant adults in his life, both as to the immediate future and the foreseeable long term future;

   (c)observed interaction between the child, the father, the applicant maternal grandmother, the maternal aunt and if possible, the late mother’s other two sons T and N;

   (d)the importance of the child continuing with his therapy and counselling by Ms O and the importance of the father’s involvement in that process;

   (e)schooling or other relevant educational issues

   and that such report be prepared and released to the parties and to the Independent Children’s Lawyer by no later than 4.00 pm on Friday 13 March 2009.

2. I order that the applicant file and serve an affidavit or report of Ms O indicating the therapy or counselling undertaken by her with the child, her views as to his progress and the need for ongoing counselling, her views as to the necessity or otherwise of involving the father in that counselling process and her views as to what future or other counselling, therapy or support the child may require, and that such affidavit be filed and served by no later than 4.00 pm on Friday 16 January 2009.

3. I vacate the directions hearing before the Registrar at 10.30 am on Thursday 22 January 2009 and I adjourn further consideration of the matter before me to 9.30 am on Wednesday 18 March 2009.

4. The remaining issue for my determination is as to with whom the child should live from the conclusion of the Christmas school holiday period until the adjourned date before this Court. As I expressed at length earlier in my analysis of the relevant Section 60CC provisions and in my view that to make the child’s path as smooth as possible and shield him from as much emotional turmoil as possible, the minimum of upheaval is appropriate until the Court receives further expert reports. On that basis I am satisfied that it is inappropriate to depart from the orders of Bell J made on 3 May 2007 with the obvious exception being that the child would need by formal order to continue to live in the same household as he has been and as he was with his mother prior to her decease. I therefore order that the child live with the applicant save as to the periods of time ordered on 3 May 2007 that he is to spend with the father.

I certify that the preceding thirty four (34) paragraphs are a true copy of the Ex tempore reasons of the Honourable Justice Burr.

Associate: 

Date: