GROVES & ARTHURTON & GROVES

[2012] FamCA 906

FAMILY COURT OF AUSTRALIA

GROVES & ARTHURTON & GROVES [2012] FamCA 906

FAMILY LAW – CHILDREN – Interim parenting – Where the maternal grandmother has intervened – Where the Mother is living in E Town and did not appear – Where the Father has had a liver transplant in September 2012 – Further evidence surrounding Father’s health required – Where there is concern that one of the children has become immersed in the Father’s illness and taken on too great of a responsibility in caring for the Father – Interim Orders made pending further evidence –Father and maternal grandmother to have equal shared parental responsibility – Children to live with Father – Children to spend time with maternal grandmother each weekend

APPLICANT: Ms N Groves

RESPONDENT: Mr Arthurton

INTERVENOR: Mr C Groves

INDEPENDENT CHILDREN’S LAWYER: Doris Chan, Solicitor

FILE NUMBER: BRC 6449 of 2010

DATE DELIVERED: 26 October 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 26 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: The Applicant Mother not appearing

COUNSEL FOR THE RESPONDENT: Ms Taylor of Counsel appearing for the Respondent Father

SOLICITOR FOR THE RESPONDENT: M A Kent & Associates

COUNSEL FOR INTERVENER:	Ms Pendergast of Counsel appearing for the Intervener
SOLICITOR FOR THE INTERVENER:	Morrison Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Fleetwood of Counsel appearing for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Legal Aid Queensland

ORDERS

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. All previous Orders pertaining to the parenting arrangements for the children, S born … February 2000 and M born … February 2004, including the Order of Federal Magistrate Coates made 28 October 2010, be discharged.

1. The children live with the Respondent Father.

1. The Respondent Father and the Intervener Maternal Grandmother have joint parental responsibility for the care, welfare and development of the children.

1. The children spend time with the Intervener Maternal Grandmother from after school Friday until the commencement of school on Monday, or as agreed to by the parties.

1. The children spend half school holidays with the Intervener Maternal Grandmother, with the Intervener Maternal Grandmother to have the first half of the Christmas 2012 school holidays, or as agreed to by the parties.

1. The children communicate with the Respondent Father and the Intervener Maternal Grandmother when they are not in their care, at all reasonable times as agreed to by the parties.

IT IS ORDERED THAT:

1. The proceedings are adjourned to trial which is listed for five (5) days commencing

   10.00 am on 4 March 2013 at the Brisbane Registry of the Family Court.

1. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders 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.

NOTATION:

If there is no agreement between the Respondent Father and the Intervener Maternal Grandmother in relation to the children attending the F School, the parties have liberty to re-list the matter before the Honourable Justice Bell at 10.00 am on 14 January 2013.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Groves & Arthurton and Anor 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 6449 of 2010

Ms N Groves

Applicant

And

Mr Arthurton

Respondent

And

Ms C Groves
Intervener

REASONS FOR JUDGMENT

1. This is an application which originated some time ago by Ms N Groves who is the mother together with the respondent, father, Mr Arthurton of six children, two of which are the subject of this case.  There are four and two children.  The two children who are the subject of this case are S who was born … February 2000 and M born … February 2004. 

2. Regrettably, the evidence before me shows that there has been a very, very chequered relationship between the applicant mother and the respondent father.  The applicant mother eventually got an order for sole parental responsibility in 2010 but the children came into the possession of the father in about the month of February 2011 and since that time have remained in his general possession.  The mother has been very peripatetic, has moved through North Queensland.   She is now understood to be in E Town together with another person whose name is Mr G, who is her present partner, and is a person from the sounds of the material which I have read is not the type of person that one would use to be a good role model for these young children. 

3. The father was and is an alcoholic.  He, as a result of this, suffered cirrhosis of the liver and a liver transplant became available which he had at the end of September 2012.  He is still recovering from a very serious operation but it appears, on the evidence before me, other than for some educational qualifications and difficulty in reading, perhaps, that he is doing well.  That is the only concern that was able to be put before me by Fleetwood of counsel save for it appears that he may have suffered a seizure or seizures but naturally, of course, this being an interim application we do not know enough about it. 

4. But as a direct result of the father’s operation he was unable on Monday to proceed with the hearing of this case.  He at that time was also unrepresented, not being given legal aid.  I want to know more about that later on and, as a result, this matter became an interim application.  The maternal grandmother, Ms C intervened – the order was made in August of this year.  She applied in May 2012 for intervention, notwithstanding, that Ms D who has done some five reports in this case considered that it may be of some importance for her to intervene in November of last year.

5. However, she has explained the reasons why she did not intervene earlier and, at this stage, this being an application by way of interim nature, I am not going to find one way or the other.  What I am more than satisfied about is that the original authorities in relation to interim applications such as the authority of the Full Court of Cowling & Cowling (1998) FLC 92-801 and Cilento & Cilento (1980) FLC 90-847, seem to have been totally over-ruled and dismissed by the matter of Goode & Goode (2006) FLC 93-286, which was determined in 2006 subsequent to the rather large amendments to this Act. I have had put before me by Fleetwood of counsel on behalf of the Independent Children’s Lawyer and I have read it thoroughly. I must say that it does concern me to a certain extent but I am bound by it.

6. I do think that their attitude that this is more a positive inquiry into what is in the best interests of the children are a progressive step rather than what may be considered in Cilento and cases of that ilk to be rather a negative. What the learned Full Court in Goode seems to suggest is that I have to consider what is in the best interests of the children’s welfare and, as a result, that I am bound by their presumptions to which I have referred and also to the requirements of section 60CC.  In this case, I do not intend to particularise the matters which are of importance in section 60CC other than to say I have looked at it and I have taken it into consideration those requirements of the Act for the court to consider and I have also taken into consideration the principles applicable in Rosa & Rosa [2009] FamCAFC 81.

7. What do we get down to?  As I have said for some time, we have a situation which on the face of it, as far as I am concerned, is to the advantage of the children.  The father and the maternal grandmother have a good relationship.  The children have been moving between the residences of Ms C and the father’s on a regular basis.  They have been going to the grandmother’s on every weekend, and they enjoy themselves there.  They stay with their father during the school week and they enjoy themselves there. 

8. Concerns have been expressed by Pendergast of counsel in relation to the maternal grandmother as to two matters in particular and also this has been expressed by Fleetwood of counsel.  That is one, whether S has, in fact, become immersed in her father’s illness and has taken too great a responsibility upon herself for looking after her father.  Pendergast refers particularly to the evidence of Ms D who prepared the fifth report as a direct result of my order on Monday.  And she says that this is not in the best interests of the child and this is supported by Fleetwood and that a child of that age should not have the responsibilities put upon her of being a nurse, mother and almost wife for the father who is ill. 

9. He is improving and it would not be, I would have thought, once we have evidence, full evidence about this matter, it would be not too much to hope that he will by the time the matter comes back for hearing in March 2013, have no residual symptoms other than his regime of extensive number of drugs he has to take to stop rejection.

10. The other matter is a question of education.  Notwithstanding, on the evidence before me there appears to be little or no concern about the children’s attendance at school, M appears to have been subjected to some bullying at H School.  They are both at H School and there is some suggestion this may have been overcome. 

11. However, S is leaving primary school at the end of this year and is to go to high school next year.  The father has proposed that she goes to the I School.  The paternal grandmother has done a fair bit of work and has ascertained that there is available an indigenous school at J Town which name is F School, which on the face of it appears to me to be a very, very proper school for children who are of Aboriginal heritage, clearly Aboriginal heritage and I note section 60 requires me to consider them.  It is quite clear on the material before me that both parties are advancing the Aboriginal culture.  I have no worries about that at all. 

12. There is one further point too, as I understand, which has fallen from both Fleetwood and particularly from Pendergast the question of K who is a 16 year old who unfortunately was developing into a fine type of boy and it appears as though he has fallen amongst bad people and has come to the notice of the police, but the father now assures me verbally that he has got control of him, that he is no longer playing with these boys and that he is now attempting to rehabilitate himself to get back to what he was before.  He is seeking work and he does work with the paternal grandfather on occasions. 

13. The old principle of an interim hearing was if I might just generalise.  If there is a status quo unless I was satisfied that the continued status quo was dangerous or really affected the welfare of the children, I should not interfere with it.  As I have said Goode has changed this and made it in effect a mini hearing.  A mini hearing, which I would have thought the phrases of Warnick J in Zabini & Zabini [2010] FamCAFC 10 where he considers it has become – it has devolved into a dilemma of labyrinth complexity. What am I do? I am restricted here by not having cross-examination, by not having the evidence put before me fully, and I make it quite clear these are the facts that I am finding.

14. One, that the respondent and the intervener are getting on well.  That the children’s welfare has been well looked after in both households.  In those circumstances why should I change the so-called status quo?  I have referred to the three reasons put forward by the Independent Children’s Lawyer and Ms Pendergast and that is supported by the final report of Ms D.  I do not think that that is enough to interfere with these children for a period of four months.  I believe that the status quo should remain and I will not order any variation but what I am saying now is that there must be a variation to the order in which the mother has had.  She has not appeared here today.  She has evinced little or no interest in the matter.  She did not appear on Monday either. And I understand from Ms Pendergast that it is unlikely that she will. 

15. In those circumstances, I think I have to vary that order and I would discharge that order and order in lieu because I am of the opinion that this matter should not go on for trial that I do not think the parties should be put to the inconvenience, that the taxpayer should be put to the fearsome expense of a four-day trial, that the parties should be put in the position at the end of the four day trial they may be totally alienated from each other and that will, in effect, affect the welfare of the children.  I am going to order, notwithstanding, I rarely do it as everybody knows that there be joint parental responsibility and that the maternal grandmother do have possession of the children after school on each weekend from after school on Friday to commencement of school on the Monday and that the children live with the father otherwise. 

16. This is nothing else but the status quo and I would think that this matter will not come on for hearing before me because it will be settled, although there is one concern and I have mentioned that already.  I think the father has to really look at this Indigenous school.  It is important for M and for his daughter that they both, at this stage, be together and that there is no concern for M being separated from his big sister.  I understand they have a reasonably good relationship with each other.  In those circumstances, I order accordingly.  Anything else?  The application is adjourned to hearing on 4 March 2013 unless otherwise told. 

17. I order half the school holidays. 

18. I will put it this way.  If in fact there has not been an agreement in relation to the children attending this school it can be mentioned before me on 14 January 2013.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 26 October 2012.

Associate: 

Date:  26 October 2012