KELLY & LANDRIDGE
[2012] FMCAfam 374
•23 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KELLY & LANDRIDGE | [2012] FMCAfam 374 |
| FAMILY LAW – Children – interim orders – Mother recently passed away – Applicant Father seeking two children live with him – biological Father to Y but not X – X lived with Applicant most of his life – Respondent maternal grandmother – allegations of domestic violence – no unacceptable risk found – both children to live with Applicant Father – Independent Children’s Lawyer appointed. |
| Goode & Goode [2006] FamCA 1346 |
| Applicant: | MR KELLY |
| Respondent: | MS LANDRIDGE |
| File Number: | BRC 1904 of 2012 |
| Judgment of: | Baumann FM |
| Hearing date: | 23 March 2012 |
| Date of Last Submission: | 23 March 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 23 March 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Middleton |
| Solicitors for the Applicant: | SJP Law |
| Counsel for the Respondent: | Ms McDiarmid |
| Solicitors for the Respondent: | Mumfords Lawyers |
ORDERS
This matter be adjourned to 9:30 on 23 May 2012 in the Federal Magistrates Court of Australia at Brisbane.
That the children Y born (omitted) 2010 and X born (omitted) 2005 born be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registrar of the Federal Magistrates Court of Australia at Brisbane.
The Applicant serve the biological Father of X together with a copy of this order.
That Mr N shall if he wishes to participate in these proceedings, file an Application to intervene support by an affidavit setting out orders he seeks in relation to X.
Liberty is granted to the parties to apply.
THE COURT ORDERS ON AN INTERIM BASIS:
That X born (omitted) 2005 and Y born (omitted) 2010 (“the children”) live with the APPLICANT.
That X spend time with the Maternal Grandmother as follows:
(a)Week 1 – From 8:00am Saturday until 5:00pm Sunday commencing 31 March 2010; and each alternate week thereafter;
(b)Week 2 – From after school Thursday until return to school Friday commencing 5 April 2012 and each alternate week thereafter.
That Y spend time with the Maternal Grandmother as follows:
(a)Week 1 – From 8:00am Saturday until 5:00pm Saturday commencing 31 March 2012 for a period of four (4) consecutive weeks; and
(b)From 28 April 2012 at the same time as X spends time with the Maternal Grandmother as referred to in Order 7(a) and (b) on each occasion.
That the Maternal Grandmother shall collect the children from the Father’s residence at the commencement of time to be spent and the Father shall collect the children from the Maternal Grandmother’s residence at the conclusion of such time.
That the Maternal Grandmother or her agent deliver X to the Father’s residence at 5:00pm on Saturday 24 March 2012.
That Mr N be served by post at (omitted), Queensland.
That no party shall physically discipline the children.
THE COURT NOTES:
The parties will ensure that X attends soccer in their respective care and both parties will be at liberty to attend at soccer.
That the Father has enrolled in an anger management course through his engagement with a psychologist under a mental health plan.
That the parties intend that X engage with Ms B for therapeutic purposes and the parties will attend such sessions as required by Ms B.
The court does not require any further forensic investigations to be conducted at this stage but would like the parties and the Independent Children’s Lawyer to identify where and optimally when a more family therapeutic process might be able to be undertaken.
IT IS NOTED that publication of this judgment under the pseudonym Kelly & Landridge is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 1904 of 2012
| MR KELLY |
Applicant
And
| MS LANDRIDGE |
Respondent
REASONS FOR JUDGMENT
(settled from extempore reasons)
For Z, who is now aged nine, X, who is now aged six, and Y, who turned two in (omitted) this year, the last three months must have been an absolute nightmare.
It has been a nightmare because although there may be a dispute between the applicant, Mr Kelly, and the respondent in these proceedings, Ms Landridge, the one fact that is not in dispute is that the primary carer and main person in the life of these three children was their mother Ms A. The mother, was involved in a serious car accident in (omitted). She died approximately two weeks later. As a result, in a sea of great distress, no doubt, and grief, the adults in this very difficult dynamic have been trying, and even with the benefit of a report from Ms J, trying to find a solution to a very complex family situation.
The complex family situation was to a large degree created by the mother. She had, in her too short a life, relationships with three different fathers who sired three different children. Z has, thankfully, a very strong and intact relationship with his biological father and the partner of his biological father, Mr and Mrs D. It has meant that in the aftermath of the tragic loss of his mother, they have been able to support him and help him as the oldest child through a very difficult issue which no doubt he is still going through.
X has not been so fortunate. His father, Mr N, has spent no time with X and seemingly there was nothing that the mother could do about that to enable X to have time with his biological father.
It therefore transpired that from the time the applicant in this case, Mr Kelly, and the mother began a relationship as a de facto couple in about 2004 (according to the Applicant), the applicant has in every respect been the psychological father of X. I am satisfied that he calls the applicant “Dad” most of the time. He may not call him “Dad” all of the time. He may, like Z, call him “(omitted)” some of the time, but in every respect the applicant, with all his imperfections such as they may exist, has been the father for X and who has been there (unlike Mr N or any other major male role model).
Y is the biological child of the applicant and the deceased. She may be at an age where some of the consequences of the loss of her mother are not as strongly felt as the older boys at this stage, but nonetheless her loss is no less real or no less significant. She has, however, post the death of her mother, had the comfort of her biological father, the applicant, and remains in the home that was the home shared by the family. Now, I have heard a lot of evidence and submissions on the evidence about the extent of the relationship between the mother and the applicant. I am prepared to accept that it was a tense relationship towards the end interrupted by the mother’s death. Such is apparent from the fact that the mother sought advice from a GP, had a mental health plan and saw a psychologist.
We will never know much of the things that the mother may have told us today. To some degree her mother, who took on the role of fostering Ms A when she was but a two year old child, draws comfort from the role she can play, by the Will that Ms A made six years ago and certainly before the birth of Y, and it would seem before the relationship had formed with the applicant. I do not deny nor challenge that Ms Landridge has been available to support her daughter. However, it seems that her daughter’s life has been at times somewhat chaotic with different people and I am sure her mother did the best she could to help her and guide her, but with the death of the mother the consequence most telling in my mind has been the effect on X.
At least that much is acknowledged I think fairly by the parties and certainly by Ms J who, amongst all the children, identified that X should receive therapy to assist with his adjustment. The adjustment I believe Ms J was talking about was an adjustment to the loss of his mother. The issues to which the Court has paid particular attention are the allegations that the applicant is a risk of an unacceptable nature to the children if they were in his primary care. That risk is said to have been established by disclosures made by Z, particularly those made even of events before the mother’s death, but certainly disclosures made after the mother’s death.
It is said to relate to things that the maternal grandmother, as I shall call her I think properly, was told by her daughter. The difficulty I have is that there is no corroborative evidence that the mother during her lifetime ever took any actions in respect of these alleged transgressions or effect of domestic violence or aggressive behaviour of the applicant to either leave the relationship, although she may have been contemplating it, or to report serious issues of abuse to the authorities. The evidence, unsatisfactory as it is, is if there was a complaint made to the Department of Child Safety it was about the mother, but I take that no further. I make it clear that this is not a time for any attempts to evaluate or assess the character of the deceased mother.
But I am not satisfied for the reasons that I have explored with both Mr Middleton and Ms McDiarmid today, who did everything they could to assist me in this difficult case, that the father does not present an unacceptable risk on the evidence at this stage to either Y or to X. Ms J uses as a basis for recommending that X remain living with Ms Landridge an assessment of the evidence which I did not think is appropriate in my view at this stage. She says at paragraph 165:
“Overall I recommend a cautious stance at least regarding X.”
I stop there for a moment to say why would there be a cautious stance in respect of X and yet not in respect of Y who is so much younger and therefore less able to demonstrate any self-protection. I find that somewhat strange.
She goes on to say:
“In my opinion Mr Kelly does not have either the life experience or the homegrown wisdom to manage the complexities of raising a child who bears no biological relationship to him.”
There is nothing to suggest that anybody else in a male role has put up their hand for X, certainly Mr N had had no relationship with X since he was 12 months of age, but more importantly it seems to fly in the face of the evidence that the applicant has been the psychological father, imperfectly as the mother may have claimed to the psychologist shortly before her death, of X for at least the last three to four years. I don’t know what “homegrown wisdom” is. If that is meant to suggest that he is a man without support, then that again flies in the face of the significant support he says he has from his own family who are also residents of the area. If it’s homegrown wisdom he needs, then he doesn’t have far to go to get it.
In terms of whether or not X’s long-term residence should be with the father, I am not asked to make that decision today. This is an interim hearing in which I, as Goode & Goode [2006] FamCA 1346 have said, have to truncate the hearing and deal with it on the basis that I am unable to make findings, but in my view Ms J does not give proper weight in her recommendations to the relationship between Y and X and the role that the applicant had spent in X’s life as the primary male role model and as a co-parent with the mother for the period of their relationship. I find that, I must say, quite strange. I say that because at paragraph 147 and 148, Ms J says this:
“When I took X in to see Mr Kelly, he went straight across for a hug and he sat on Mr Kelly’s knee for virtually the whole time. They talked in quiet tones about things and animals around home.”
I stop there for a moment. I suggest that is the home that he shared with his mother, the person he regards as his father, and his sister, before his mother’s death.
“Their chatter was animated and pleasurable for them.”
“At the end of the session, X didn’t want to leave. He was torn over it and he tried to resist for as long as possible. When he gave Y a kiss goodbye they fell over together causing everyone to laugh with them. This broke the deadlock and he was able to leave without the earlier problem.”
It is in my view clearly a recommendation by Ms J which is against the weight of that evidence and I do not accept as a result, at this interim stage, the recommendation of Ms J doing the best she could I am sure with all the talent she possess to make a recommendation that X live with the grandmother. I’m further fortified in that view by the failure of Ms J, in my view, to make any recommendation about the time that X should spend with his father or in the home that he had with his mother before his mother’s death. I gave the lawyers for the parties an opportunity to tell me whether, even in the shortness of time that’s available, they made an inquiry of Ms J as to whether this was an oversight.
If, as Ms M says, it could be read as an indication that the Court should make no order for the child to spend time with the father, then it is a further serious problem in the report in my view on the evidence as I assess it.
X should return to live with his sister and the applicant as soon as possible. It is important that he spend time with his grandmother for a number of reasons including, firstly, she is an important person in his life and is a true connection to the identity of his mother. Secondly, it is only through the agency of the maternal grandmother that time between Z, X and Y is likely to be achieved at the current time. I do not ignore the prospect that in time Mr and Mrs D may find an opportunity for Z to see the children in the applicant’s care.
I note, for example, that Mr D acknowledged that he didn’t know much about the father. He may need to, in view of my reasons, reconsider whether the father is as poor a person as has been painted. However, that’s a matter for Mr D. I have every confidence that he will do the best for Z. In my view, the time that should take place between X and the grandmother ought be weekly. It should include an alternate weekend from Saturday until Sunday.
X needs to have recreational time in the care of the applicant, in my view, so it wouldn’t be appropriate for me to make any time in the second weekend in my view. I think I would prefer to see perhaps a routine of X spending a night (I would be happy for it to be overnight), perhaps a special time with his grandmother in the off week. Y, I think, should be encouraged in her relationship with the grandmother to be able to spend the same amount of time as X does. However, at this stage I cannot be satisfied, and Ms J’s report doesn’t assist me by not looking at any attachment between Y and the grandmother, to be satisfied that she is comfortable leaving her father and spending time with the grandmother (especially in circumstances where her mother has only recently died).
There is no risk I see in the grandmother’s home. I am sure that she is more than capable of looking after this child. It is a question of timing. Because I am going to bring this back before me in about two months time on 23 May, between now and then I think Y should spend at least a good part of the weekend that X spends with the grandmother, but hoping by 23 May maybe the parties can be satisfied that Y is able to spend overnight there, but I think it should be then. I think because Y is not at school like X, maybe there are some opportunities for the maternal grandmother to have some further opportunity to spend time with Y perhaps once a week at a time when X is not there because I think that’s a relationship that could benefit from some development as well.
I make orders as set out at the commencement of these reasons.
I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of Baumann FM.
Date: 23 March 2012
0