Keane and Keane (No. 3)

[2008] FamCA 650

FAMILY COURT OF AUSTRALIA

KEANE & KEANE (NO. 3) [2008] FamCA 650

FAMILY LAW – PARENTING CASE – Review of registrar’s decision not to list matter as urgent – Long-running dispute – Child only months away from 18^th birthday – Legal guardians now deceased

Family Law Act 1975 (Cth)

APPLICANT: Ms Keane

RESPONDENT: Mr Keane

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 6543 of 2007

DATE DELIVERED: 24 JULY 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 24 JULY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Orders

1. That the mother’s application in a case filed this day to review the decision of the registrar in which she refused to abridge the hearing of the mother’s proposed application for parenting orders is granted notwithstanding it has not been brought to the attention of the Independent Children’s Lawyer.

2. That the application in a case filed by the mother this day seeking parenting orders be listed for hearing at 12 noon on 5 August 2008 in the Senior Registrar’s list of cases.

3. That the mother’s oral application to vary the existing parenting orders is dismissed.

4. That the Independent Children’s Lawyer attend upon the return date.

5. That the mother forthwith serve a copy of the application in a case and affidavit in support thereof filed this day upon the Independent Children’s Lawyer.

6. That Ms S, Ms C, Ms G or Ms M, being the sisters of the applicant, bring the child M born … November 1990 to this Court at 12 noon on 5 August 2008 for the purposes of determining the future parenting arrangements pending his 18^th birthday.

7. That the application in a case seeking a review of the registrar’s decision filed this day be otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6543  of 2007

MS KEANE

Applicant

And

MR KEANE

Respondent

REASONS FOR JUDGMENT

1. This application was brought to my attention on an urgency basis this afternoon.

2. The mother was the applicant.

3. I have made orders but because of other pressing commitments, did not have time to do an ex tempore judgment. I now set out the reasons for the decision that I have made.

4. The case is one with which I am well familiar. It has been before me on a number of occasions. On the last occasion, I fixed a specific date for the hearing of a contravention application brought by the mother against the respondents, her own parents.

5. The mother attended the registry today and filed an application in a case seeking to vary existing parenting orders. A registrar declined to abridge time to have the application listed as urgent.

6. The mother then filed an application to review the registrar’s decision.

7. The review would normally have been placed in a list for the first available judge to hear.

8. The application for review was brought to my attention having regard to my responsibilities as Case Management Judge.

9. I deemed the matter important and listed it instanter.

10. This case revolves around a son of Ms Keane. M has lived with his maternal grandparents pursuant to orders of this court for a long time. The unusual feature of the case is that M turns 18 years of age in November this year; only weeks away.

11. I have previously declined to treat the matter as more urgent than other pressing cases in this registry not only because of M’s age but because of a comprehensive family report completed in November 2007 and also because his interests are represented by an Independent Children’s Lawyer who told me on a previous occasion that he had conversed with M and had a very clear understanding of what M wanted. M did not want to live with his mother.

12. The striking feature of this immediate application however was that the respondents are both shown as deceased. The maternal grandmother died in March 2008. The paternal grandfather died a very short time ago. My first reaction was surprise that such an application would be made when her own father’s funeral had not then taken place but such has been the relationship of the mother with her family that it is perhaps not so surprising.

13. The mother’s application had not been served.

14. The only person upon whom such an urgent application could be served was the Independent Children’s Lawyer. The mother told me that she had spoken to the secretary to the Independent Children’s Lawyer and he had declined to discuss matters with her or to accept her correspondence. I do not know whether that was on the basis of an understanding that the correspondence was in reality, an application or not. It matters little.

15. What convinced me to make the orders contrary to the dictates of the registrar was that with the death of the respondents, there is no legal guardian now responsible for the day to day activities of M notwithstanding he is almost an adult.

16. The material presented by the mother was unhelpful. To some extent that is understandable because she was unrepresented in respect of the review application however I perceive that she had assistance from her lawyer for the substantive application.

17. A dilemma in hearing the review application as I did was that I was determining it on the basis of the written material rather than having the advantage that the registrar had when considering the position. The registrar had the opportunity to discuss with the mother and others just what the urgency of the situation was. I chose not to do that because that would have necessitated me going outside of the written and even the potential oral evidence of the applicant. I was not prepared to do that. If I have not been told the full and comprehensive truth, the mother will have a difficult credibility issue on the next return date.

18. The mother told me that M is disabled. She has frequently pointed to the fact that the lawyers involved in the case had sought compensation for him on the basis of his disability. That is unhelpful information because all of these issues were canvassed by the family consultant last year and have been the subject of considerable discussion and affidavit material.

19. The mother said that M had been pleading with her to be removed from the house in regional Victoria where he has been living so that he could live with her. She said that he had been prevented from doing so.

20. According to the mother, the police will not intervene because it is a Commonwealth Order and if she wanted their assistance, she needed a recovery order. It is trite to point out that there is an intervention order in place against the mother.

21. The mother made a remark about the Department of Human Services not being involved. I have assumed that if they are aware of the situation they would decline to be involved.

22. Apparently from what I recall, there are disability workers assigned to M and he leads an active life. The death of his last surviving grandparent may have upset that and it may be that the court needs to hear from the disability workers whether M is in need of some legal control or whether, from the opposite extreme, he is being harassed by his mother.

23. The mother told me that M is living alone in the regional Victorian house but is being cared for by a rotation of his aunts one of whom lives in Melbourne.

24. I did not have the benefit of the view of the Independent Children’s Lawyer. According to the mother that would not assist because according to M, there has been no discussion between the Independent Children’s Lawyer and M for months and accordingly, the lawyer may not even be aware of the grandfather’s death. I find all of that rather unlikely but it must be possible.

25. The position that the mother put to me, and these are my words, M is effectively being held a prisoner.

26. Having regard to what I read in the November report, in which it was clear that M wanted to have his own life and do what he wanted, the prospect of him being held a prisoner seemed even more unlikely although again, possible.

27. I have made the decision to have the case listed ahead of the time allocated by the registrar because M does not seem to have a legal guardian under any orders. The question of the provisions of s 65K of the Family Law Act 1975 (Cth) (“the Act”) came to mind but that refers to the death of a parent. M’s biological father had been named on the initiating application but I understand he has never taken part in the proceedings. Just what his position in all of this may need to be considered.

28. In the absence of an opportunity to have the matter argued properly, I did not consider that I should make any determination or pronouncement about who had what legal responsibilities if both of the respondents are now deceased.

29. The matter is within the jurisdiction of the Senior Registrar. He can determine whether there is a basis to be concerned about M’s interim welfare.

30. It is important to put this matter to rest. It is a case that cannot be determined after November and may not need to be.

31. Having granted the review, the mother insisted that I then deal with her oral application for an immediate variation of the parenting orders to direct that M live with her. She relied upon the matters to which I have already referred.

32. It would not be appropriate to do that having regard to what was in the family report from last year. Notwithstanding there has possibly been a significant change of circumstances, I am still concerned that M has been living in the house whilst his paternal grandfather has been in hospital, according to the mother, dying. The death does not seem to make a difference.

33. To proceed on an ex parte basis in these circumstances with a child of M’s age would be inappropriate.

34. I do not need to examine all of the matters in Part VII of the Act because I am not determining a parenting application. I am determining whether or not it is appropriate to list this matter as urgent. On the basis of my understanding, it is not.

35. If I was wrong about that, I do not see the change of circumstances in the grandfather’s death as such a change having regard to the report of the family consultant last year and the views of the Independent Children’s Lawyer expressed to me at the last interim hearing before me.

36. The return date however to which the registrar directed the initiating application was the day upon which the mother had intended to seek to establish contraventions of orders by the now deceased respondents. The applications which I have read were against her now deceased mother and father. How she intended to successfully prosecute those applications when her own father was dying eludes me. It is now not appropriate to continue with those applications and the mother agreed. Accordingly I have vacated that hearing date. The applications will need to whither on the vine.

37. I publish these reasons.

I certify that the preceding Thirty Seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  25 July 2008