Juliet and Ramsay

[2009] FamCA 1133

FAMILY COURT OF AUSTRALIA

JULIET & RAMSAY [2009] FamCA 1133

FAMILY LAW – CHILDREN – interim proceedings – Magellan – best interests – with whom a child spends time – application by the mother seeking to increase her time with the child to overnight – where the mother’s time with the child is subject to supervision by the maternal grandmother – where there are concerns about the child’s safety in the mother’s care and the mother’s capacity to keep the child safe from her son – matter adjourned – parties to enrol in a parenting program

Family Law Act 1975 (Cth) s 60CC

APPLICANT: MR JULIET

RESPONDENT: MS RAMSAY

INDEPENDENT CHILDREN’S LAWYER: MS REED

FILE NUMBER: ADC 2341 of 2009

DATE DELIVERED: 24 NOVEMBER 2009

PLACE DELIVERED: ADELAIDE

PLACE HEARD: ADELAIDE

EX TEMPORE REASONS OF: BURR J

HEARING DATE: 24 NOVEMBER 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:	MS LEE
SOLICITOR FOR THE APPLICANT:	BARTEL & HALL

COUNSEL FOR THE RESPONDENT:	MR BOEHM
SOLICITOR FOR THE RESPONDENT:	CHRISTOPHER GANZIS & CO

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	MS REED
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	LEGAL SERVICES COMMISSION

Orders

UPON NOTING that the father is not in attendance today and his Counsel does not have his instructions, not just in relation to the Family Report of 11 November 2009 but more importantly the Affidavit of the mother tendered to the Court this day

IT IS ORDERED THAT:-

1. Further consideration of the proceedings be adjourned to 12.30 pm on Tuesday 22 December 2009 before the Honourable Justice Burr.

2. The parties enroll in the first available and convenient Kids Are First parenting programme and do attend at and complete the same and use their best endeavours to encourage members of their extended family to also undertake such course.

AND IT IS FURTHER ORDERED, DURING THE PERIOD OF THE ADJOURNMENT, THAT:-

1. Paragraph 2 of the Orders made on 27 August 2009 continue.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2341  of 2009

MR JULIET

Applicant

And

MS RAMSAY

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have before me today continuing Magellan proceedings that bear upon the best interests of 9 year old D born in January 2001.  D will be 10 years of age in January of next year.  The mother is currently only seeing D from 11.00 am until 5.00 pm each alternate Saturday and it is subject to a number of conditions, including conditions as to supervision by the maternal grandmother.

2. The Court and the parties now have the benefit of a comprehensive Family Report dated 11 November 2009.  The recommendation contained in that report is to the effect that there be no change presently.  The issue for the report writer and indeed for the Court is the question of D’s safety in the mother’s care and that issue of safety appears to be the major impediment to the mother spending additional time with D from the perspective of the report writer.

3. There is significant content within the report indicating that there is an excellent relationship between the mother and D, a relationship which should be fostered as it is a relationship which is clearly of benefit to D.  A summary of that position can be found in paragraph 48 of the Family Report where the report writer, Mr P, also makes reference to the importance of the relationship that D enjoys with the maternal grandmother.

4. I had a preliminary view that the mother’s application to increase her time with D to overnight, namely from Saturday at 11.00 am until Sunday at 5.00 pm still subject to the supervision of the maternal grandmother, ought to be supported.  However the Independent Children’s Lawyer correctly points out that the issues contained in the Affidavit of the mother filed today raise one of the remaining spectres of concern as to the mother’s capacity to keep D safe from her son B and in that regard Mr P makes this pointed observation in paragraph 45 of his report:-

   “It is possible that [D] is at some risk of abuse from [B].  It is evident that [the mother] has a limited capacity for protecting her children from the abusive behaviour of others and may have difficulty in recognising risk if it exists.”

5. The mother’s Affidavit indicates that B is now back in her care and they occupy the Housing Trust premises now made available to the mother.  Whilst her mother has moved into those premises with her, it is potentially an onerous responsibility on the maternal grandmother to not only supervise properly the time between D and the mother, but also to supervise any interaction between B and D.  It was indeed allegations of improper conduct as between B and the child D which prompted this matter being accepted into the Magellan list in the first place.

6. Overall I see value in the mother having increased time with D and when I say value, I mean from the perspective of D’s best interests. However, the issues of safety also loom large in the Court’s determination and indeed the two issues of a meaningful relationship between D and the mother and D’s safety are those enunciated in the “primary considerations” under section 60CC of the Act. That has always been, and continues to be, a difficult balancing exercise.

7. In exercising caution in D’s best interests I believe it appropriate to give the father an opportunity to consider the mother’s application and to advise the Court whether it would be possible for consecutive days each alternate weekend to be arranged between the mother and D on the basis that he is able to find somewhere to stay in Adelaide overnight on those alternate weekends.  I recognise the distances involved in the travelling, given that the father resides near Victor Harbor and the mother in the western metropolitan region.  Thus the initially preferred suggestion of the Independent Children’s Lawyer that the mother spend a day each weekend with D is also a difficulty in a geographical sense.

8. However, I am keen for the parties to explore during the period of the adjournment the possibility of extending the mother’s time with D but at this point in time not on any overnight basis.  I am also keen for the parties to explore arrangements that may be achieved for the mother to spend part of Christmas Day with D and D birthday in January. 

9. I accept the good sense of the Independent Children’s Lawyer’s suggestion that the parties have indicated, through their interactions with Mr P, that they could benefit from attending an appropriate parents skills course and in that regard she mentioned the Kids Are First programme.

I certify that the preceding nine (9) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Burr

Associate: 

Date:  24 November 2009