Grasso and Esplin and Anor

[2015] FCCA 1527

FEDERAL CIRCUIT COURT OF AUSTRALIA

GRASSO & ESPLIN & ANOR [2015] FCCA 1527

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – parental responsibility – sole parental responsibility – where respondents have failed to engage with the court proceedings – where father’s parole appears to have been revoked – where child has attended four different schools in less than two years – recovery order to issue.

Legislation:
Family Law Act 1975 (Cth), ss.60CA, 61DA, 67Q

Applicant: MS GRASSO

First Respondent: MR ESPLIN

Second Respondent: MS HOOPER

File Number: SYC 1659 of 2014

Judgment of: Judge Scarlett

Hearing dates: 4 & 27 May 2015

Date of Last Submission: 27 May 2015

Delivered at: Sydney

Delivered on: 27 May 2015

REPRESENTATION

Solicitor for the Applicant: Ms Loy

Solicitors for the Applicant: Mitchell Playford and Radburn

Respondents: No appearance

Solicitor for the Independent Children’s Lawyer: Ms Nessworthy

Solicitors for the Independent Children’s Lawyer: Hamish Cumming Family Lawyers

ORDERS

1. The Applicant Mother is to have sole parental responsibility for the child X born (omitted) 2006.

2. The child X is to live with the Mother.

3. Pursuant to section 67Q of the Family Law Act 1975 a recovery order issue directed to the Marshal of the Federal Circuit Court, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia requiring them to find and recover the child X born (omitted) 2006 and to deliver the said child to the Applicant and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found.

4. The Independent Children’s Lawyer is granted liberty to apply on 48 hours’ notice.

5. The Application is adjourned to 1 July 2015 at 10am for further mention before Judge Scarlett in Court 3A, level 3, Lionel Bowen Building, 99 Goulburn Street, Sydney NSW 2000.

6. The Applicant’s legal representative is granted leave to appear by telephone on the next occasion.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judge Scarlett delivered this day will for all publication and reporting purposes be referred to as Grasso & Esplin & Anor.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYC 1659 of 2014

MS GRASSO

Applicant

And

MR ESPLIN

First Respondent

MS HOOPER

Second Respondent

REASONS FOR JUDGMENT

1. This is an Application by the mother of a child called X, who is now nine years of age, having been born on (omitted) 2006, for interim orders that the child should live with her.  I heard submissions on the 4th of this month from the solicitor for the mother and the Independent Children’s Lawyer.

BACKGROUND

1. The first respondent, the father, has not at any time engaged in these proceedings and for a significant period of time has been in prison.  He has been released from prison, but the matter has been brought back to Court as a matter of urgency because a warrant has been issued for the father’s arrest.  It appears that his parole has been revoked.

2. The second respondent is the paternal grandmother.  The evidence before me is that the child has gone from the care of the father to the care of the paternal grandmother as the result of the father’s troubles with the police.

SUBMISSIONS

1. There are matters for concern in this case.  On a long-term basis, the evidence is that the child has spent time with the mother over the telephone, but there has been no face-to-face contact because it has not been permitted either by the father or by the paternal grandmother.

2. Another area of concern has been raised by the Independent Children’s Lawyer relating to the child going from the care of the father to the paternal grandmother and back again.  The child was attending (omitted) Public School, but, according to Ms Nessworthy, the Independent Children’s Lawyer, she has attended four different schools since February 2014.  She has attended schools at (omitted), (omitted) Public School and (omitted) Public School, and has gone from one to the other.  It is difficult to see how this can at all be in the child’s best interests, as it is highly disruptive to her education.

3. It is the mother’s case that she has remarried and she has a stable home life with her husband and with her four children, who are X’s half-siblings.  There is an older sister, now aged 12, and there are younger children.  The mother wishes to provide a stable home for her daughter and bring her up with her other children.

4. It is concerning that neither the grandmother nor the father have engaged with the Court at all.  They have not filed any documents.  They have not sought to be heard.  They have adopted the policy of ignoring the Court proceedings and ignoring a serious application brought by the mother.  The previous Independent Children’s Lawyer, Ms Mordaunt, had expressed frustration at obtaining information from these parties.

CONCLUSIONS

1. In my view, whilst a change of care of the child at this stage will be a drastic step and may cause her some distress, the situation just cannot continue.  There appears to be a chronic problem for the child with her education and with her home arrangements and the fact that she is not seeing her natural mother.  There is no evidence to show that her natural mother is anything but well-disposed to this child and wishes to offer her a loving environment.

2. The circumstances are now a matter of urgency, and I propose to order that until further order, the mother should have sole parental responsibility for this child, the child should live with the mother, and a recovery order is to issue under the provisions of section 67Q of the Family Law Act 1975.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate:

Date:  4 June 2015