Grainor and Grainor and Anor

FAMILY COURT OF AUSTRALIA

GRAINOR & GRAINOR AND ANOR	[2009] FamCA 1129
FAMILY LAW – CHILDREN – Interim parenting orders – Review post return of family and psychiatric reports – Orders made largely by consent – Question of Independent Children’s Lawyer’s role as a conduit for information – Family consultant more appropriate point of contact – Review of matter in 12 months
APPLICANT FATHER:		Mr Grainor

FIRST RESPONDENT PATERNAL

GRANDMOTHER:

Ms Grainor

SECOND RESPONDENT MOTHER:

Ms Bass

INDEPENDENT CHILDREN’S LAWYER:

Ms Cruttenden, Solicitor, Legal Aid

FILE NUMBER:

BRC

11111

2008

DATE DELIVERED:

17 November 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Barry J

HEARING DATE:

17 November 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Oakley, Solicitor of Files Stibbe Lawyers appeared for the Applicant Father

SOLICITOR FOR THE FIRST

RESPONDENT PATERNAL

GRANDMOTHER:

Mr Evans, Solicitor of Evans & Company appeared for the First Respondent Paternal Grandmother

SOLICITOR FOR THE SECOND

RESPONDENT MOTHER:

The Second Respondent Mother appeared in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms Cruttenden, Solicitor of Legal Aid appeared as the Independent Children’s Lawyer

Orders

IT IS ORDERED BY CONSENT THAT:

The Paternal Grandmother have sole parental responsibility for the children, K born … February 1996 and E born … October 1997.
The children live with the Paternal Grandmother.
The children spend time with and communicate with the Mother at all such times as may be agreed between the Paternal Grandmother and the Mother.

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT:

The children spend time with and communicate with the Father at all such times as may be agreed between the Paternal Grandmother and the Father, but failing their agreement as follows:
a.provided that:
i.the children or either of them first seeks or requests to visit with the Father; and
ii.the Father provides, at his cost, the results of a supervised test for illicit drug use of no greater age than seven (7) days prior to any proposed visit which reveals that the Father has not been consuming illicit substances; and
iii.the Father provides, at his cost, within the same period, a medical report from his general medical practitioner to the Paternal Grandmother at her address for service, which general medical practitioner shall be provided with instructions from the Independent Children’s Lawyer and with a copy of this Order and each of the reports of Ms Q and Dr M and the material produced under subpoenae by Dr H and Dr L, which medical report shall confirm that the Father poses no risk to the children;
then a supervised visit shall be arranged to occur with a frequency of no greater than one (1) occasion per month at the Gold Coast Contact Centre on such dates and for such periods as the Centre may accommodate, but not more than four (4) hours per visit;
b.for the purposes of the supervised visits, the Father meet the cost of the Centre administering and providing their services to the family and for his travel to and from the Centre for the visits;
c.each of the parties will abide the service charter for the Centre at all times;
d.in writing at all reasonable times via the office of the Paternal Grandmother’s solicitor provided that the Paternal Grandmother shall facilitate the children establishing their own email account in order they may communicate with their Father;
e.by telephone:
i.at any time the children may request, with the children to initiate the calls; and
ii.on one (1) occasion per month and unless otherwise agreed to occur on the fourth (4^th) Saturday of each calendar month at a time to be nominated by the Paternal Grandmother, the Father may telephone to speak with the children.
The Paternal Grandmother shall provide to each of the Mother and the Father copies of the children’s school reports provided that she may first delete the names of their schools and any other details which would reveal their address or school.
Provided the Father first meets the cost of same, the Maternal Grandmother shall provide copies of any school photographs which issue in respect of the children and further provided that the children are agreeable for the provision of the photographs to the Father.
In the event the Paternal Grandmother forms an intention to relocate the residence of the children away from the Gold Coast, she shall first give to each other party, no less than sixty (60) days notice of such intention.
The matter be reviewed upon the earlier of the expiration of twelve (12) months from the date of this Order or the occurrence of ten (10) visits pursuant to paragraph 4(a) hereof.
a. For the purposes of the children requesting or seeking any visit or visits with the Father they shall be provided with the contact details for

Ms Q at Legal Aid Office Queensland.
b.Any visit or visits that the children request with the Father shall be arranged by the solicitors for the Father and the Paternal Grandfather.
The Paternal Grandmother attend upon Ms Q with the children, for these Orders to be explained to them, with the assistance of the Independent Children’s Lawyer, at a time to be arranged by the Independent Children’s Lawyer.

IT IS FURTHER ORDERED THAT:

The Independent Children’s Lawyer is permitted to provide copies of the following to the Father’s current treating general practitioner and psychiatrist:

a.affidavit of Ms Q filed 10 September 2009;
b.affidavit of Dr M filed 27 October 2009;
c.subpoenaed documents from Dr H (number 3);
d.subpoenaed documents from Dr L (number 7); and
e.copy of any Orders made by the Court and the reasons accompanying such Orders.

In the event there is a cost associated with paragraph 11, that cost be borne by the Father should the Independent Children’s Lawyer be unsuccessful in obtaining a grant of legal aid.
The proceedings be listed for a review with the parties to be at liberty to attend by telephone in twelve (12) months, in order to review the progression, if any, of the Father’s visits with the children.
Liberty to apply to all parties on seven (7) days notice.
Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11111 OF 2008

MR GRAINOR

Applicant Father

And

MS GRAINOR

First Respondent Paternal Grandmother

And

MS BASS

Second Respondent Mother

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

This matter was listed for case management review. The dispute at the present time concerns the orders to be made in relation to two children - K, aged 13, and E, aged 11. The children are cared for by their paternal grandmother. The mother and the father are both parties to the litigation. There is no dispute, as I understand the situation, between the mother and the paternal grandmother. The conflict lies in what orders should be made in relation to the father spending time with his children. The matter was last before me on 25 June this year. At that time I ordered the preparation of a psychiatric report and the preparation of a family report. I reserved on the costs of the cancellation fee of Dr M.
The report of Dr M and the report of Ms Q, the family consultant are now to hand and I have perused those documents. On today’s date the parties are agreed on draft orders. Some of the orders agreed to by the parties are in final form and some are interim orders. The mother, the father, and the paternal grandmother, have signed these documents. The independent children’s lawyer is only agreeable to the orders in those terms provided there are additional orders.
The typewritten orders executed by the parties are the final orders:
a)“that the paternal grandmother have sole parental responsibility for the children;
b)the children live with her;
c)the children spend time and communicate with the mother at all such times as may be agreed between the paternal grandmother and the mother.”
Thereafter it is hereby ordered, until further order, as follows:
a)“the children spend time with and communicate with the father at all such times as may be agreed between the paternal grandmother and the father, but failing their agreement as follows:
(a) provided that
(i) the children, or either of them first seeks or requests to visit with the father,
(ii) that the father provides, at his cost, the results of a supervised test for illicit drug use of no greater age than seven days prior to any proposed visit which reveals that the father has not been consuming illicit substances, and
(iii)the father provides at his cost, within the same period a medical report from his general medical practitioner to the paternal grandmother at her address for service, which general medical practitioner shall be provided with instructions from the independent children’s lawyer and with a copy of this order and each of the reports of Ms [Q] and Dr [M] and the material produced under subpoena by Dr [H] and Dr [L], which medical report shall confirm that the father is emotionally stable;
then a supervised visit shall be arranged to occur with a frequency of no greater than one occasion per month at the Gold Coast Contact Centre on such dates and for such periods as the centre may accommodate, but not more than four hours per visit.”
The orders then go on to provide:
“b)for the purpose of the supervised visits, the father meet the cost of the centre administering and providing their services to the family and for his travel to and from the centre for the visits;
c)each of the parties will abide the service charter for the centre at all times of the centre;
d)in writing at all reasonable times via the office of the paternal grandmother’s solicitor providing the paternal grandmother shall facilitate the children establishing their own email account in order they may communicate with their father -
I assume that both the father and the children have access to email -
by telephone:
(i)at any time the children may request, with the children to initiate the calls; and
(ii)on one occasion per month and unless otherwise agreed to occur on the fourth Saturday of each calendar month, at a time to be nominated by the paternal grandmother, the father may telephone to speak with the children.”
Paragraphs 5 through to 8 are uncontentious, and I do not really need to read those. Paragraph 9 provides:
“For the purposes of the children requesting or seeking any visit or visits with the father, they shall be provided with the contact details for the independent children’s lawyer.”
I will canvass this, but I gather that that is now no longer an issue. It is common ground the children can contact Ms Q. And paragraph 10 is:
“The independent children’s lawyer is requested to meet with the children to explain the terms of the order -
that is this order -
and to inform the children of her availability so as they might express any request for a visit or communications with their father.”
The independent children’s lawyer has proposed certain amendments that are in handwritten form and they will be marked exhibit two for today’s purpose.
As I understand the situation, there is no conflict with the independent children’s lawyer’s proposals in relation to paragraphs 1, 2, 5, and 6, save for two minor amendments - an amendment to paragraph 1 being 1(e):
“The independent children’s lawyer is permitted to provide copies of documentation to the general practitioner and psychiatrist.”
(a)the affidavit of [Ms Q] with her report;
(b)[Dr M’s] report;
(c)subpoenaed documents; and
(e)a copy of any order made by the court and the reasons accompanying such orders.
For reasons I will give, I am not going to order a psychiatric report, so that portion of the draft order can be deleted:
In relation to paragraph 6, the paternal grandmother’s lawyer was ambivalent as to whether there should be adjournment for six months or 12 months. I propose to adjourn the matter for 12 months because I believe it will take quite some time if these orders are going to have any operative effect.
Though there is disagreement as to the reasons for objecting to the amendments proposed by the independent children’s lawyer, the legal representative for the father and the paternal grandmother oppose the terms of her draft 3 and 4. Her draft 3 is an amendment to paragraph 4(a)(3) to which I have previously referred, that is the father has to clear three hurdles before he has the limited supervised time with the children. The first hurdle is that they have to request it, and they have to request it to Ms Q. Second, he has got to provide proof that he has been free of drugs in a time frame of seven days prior to the proposed visit, and the third one is to provide a certificate from either the general practitioner or psychiatrist or both, it has been suggested.
Amongst other things, the independent children’s lawyer has concerns about the use of the words “emotionally stable” in paragraph 4(a)(3). The legal representative for the father submitted that the intention of the parties was for the independent children’s lawyer to be seen as a conduit for the children to request that they want to see their father. If nothing else, it takes the pressure off the paternal grandmother. Reference was made to the terms of Ms Q’s report expressing concerns about the ability of the paternal grandmother to promote a relationship between the children and their father, or, as it is often put, for her to give the children permission expressly or implicitly to feel free to contact their father if they wish. It was argued the independent children’s lawyer was the best way to facilitate the children expressing any such wish to see their father.
I pause to note that the matter has not proceeded to a hearing, and it is difficult to adjudicate on the bona fides of a particular litigant. However, I note that the paternal grandmother has filed an affidavit in the proceedings, and I can only say that I have to accept the terms of that document at face value. It certainly has a degree of detail in it which would indicate she has observed the events to which she relates.

RECORDED : NOT TRANSCRIBED

I record that I have to agree with the submission that it should not be necessary for the father to obtain a report from a psychiatrist as proposed by the independent children’s lawyer. I expect a general practitioner or a psychiatrist would have some difficulty certifying in terms of the wording proposed by the independent children’s lawyer:
“That the Father is emotionally stable.”
I would propose altering that to read:
“He poses no risk to the welfare of the children in a supervised environment.”
I expect some medical practitioners could baulk at making such a categorical statement, however, I fail to see in relation to the draft of 4(a)(3) why the father’s solicitors cannot provide the requisite material to the general practitioner - they will know who it is - with a stipulation that any such correspondence is to copied to the paternal grandmother’s solicitor and the independent children’s lawyer together with any further correspondence with any replies from the general practitioner, not just the certification, and I will be framing the order accordingly. And I propose to - and I will hear submissions on this if there is any great debate about it – propose to substitute “poses no risk to the children” in lieu of “emotionally stable”. It seems to me it is a more relevant type of test, and I am not putting that forward as any compromise or a cop out.
I will include paragraph 4 of the independent children’s lawyer’s draft:
“Any visits that the children request with the father shall be arranged by the solicitor for the father and the paternal grandmother.”
But I am also going to include the draft of 9. So one will be 9(a), and the other will be 9(b). In other words, it will be, as in the typewritten document:
“For the purposes of the children requesting or seeking any visit or visits with the father, they shall be provided with the contact details for [Ms Q] at Legal Aid office Queensland.”
That is 9(a). 9(b) will be:
“Any visits that the children request with the father shall be arranged by the solicitors for the father and the paternal grandmother.”
It is clearly provided elsewhere in the orders that the particular contact centre shall be the one at the Gold Coast.
Now, I accept the proposition advanced by the legal representative for the paternal grandmother that the independent children’s lawyer is appointed as the children’s lawyer, and it is not uncommon for children to be at liberty to make contact with the independent children’s lawyer, but in the whole of the circumstances, it is common ground now that Ms Q is the appropriate person, and that can be done by way of the interview with the children with Ms Q and Ms Cruttenden present.
There is nothing to really stop the children contacting the children’s mother, for instance, and I feel sure that in good faith she would notify the independent children’s lawyer and Ms Q that the children were expressing this view. Alternatively, the parties could have agreed on some other individual that they could rely on, but in any event it does not have to be determined now because Ms Q has been nominated. Once such communication is received, as I have said by paragraph 9, the onus is on the legal representatives to make the requisite arrangements for the parties to attend and undergo the interviewing process at the contact centre. If they cannot do that, then the matter will just simply have to come back to court.
I suppose to give a liberty to apply clause on seven days notice. That does not mean to say you will get on in seven days. It just simply means that you have got to give the other parties seven days notice of relisting the matter. I propose to adjourn for 12 months. As I have said, this will take several months before anything is likely to happen. It seems to me it will be bouncing back before there have been any real prospects of the father spending time with the children. I would see paragraph 10 - I propose to put the independent children’s lawyers paragraph 10 into the order. In other words it will read:
“That the paternal grandmother attend upon [Ms Q] with the children for these orders to be explained to them with the assistance of the independent children’s lawyer at a time to be arranged by the independent children’s lawyer.”
The intention, clearly, is for the two independent, responsible, qualified people, namely, Miss Q and Ms Cruttenden, to meet with the children, by themselves, to explain the court’s order and to generally empower the children to feel free to contact Ms Q or their mother if they wish at any time to see their father, and orders will issue accordingly.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate:

Date: 17 November 2009

[2009] FamCA 1129

17 November 2009

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Costs

Jurisdiction

Procedural Fairness

Remedies