Klare and Klare-Reid and Ors

[2016] FamCA 866

FAMILY COURT OF AUSTRALIA

KLARE & KLARE-REID AND ORS [2016] FamCA 866

FAMILY LAW – CHILDREN- Application by children’s paternal great aunt for a recovery order – Application adjourned to a fixed date for mention – Order that Issues Assessment Report be prepared – Interim Orders that children reside with the paternal grandfather – Interim Orders that children communicate with the paternal great aunt – Interim Orders that children spend time with the paternal aunt during school holidays – Interim orders that father spend supervised time with the children - Injunctive orders

Family Law Act 1975 (Cth)

APPLICANT:

Ms Klare

1^ST RESPONDENT:

2ND RESPONDENT:

Mr Klare-Reid

Ms Malcolm

3^RD RESPONDENT: Mr Reid

FILE NUMBER: SYC 2218 of 2016

DATE DELIVERED: 18 August 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 18 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE 1^ST RESPONDENT:

SOLICITOR FOR THE 1^ST RESPONDENT:

COUNSEL FOR THE 2^nd RESPONDENT:

SOLICITOR FOR THE 2^nd RESPONDENT:

COUNSEL FOR THE 3^RD RESPONDENT:

SOLICITOR FOR THE 3^rd RESPONDENT:

In person

In person

Ms Nelson

Journey Family Lawyers

Orders

UNTIL FURTHER ORDER

1. Ms Klare (‘the aunt’) and Mr Reid (‘the grandfather’) shall have equal shared parental responsibility for the children B born … 2005, C born … 2007 and D born … 2009 (‘the children’).

2. The children live with the grandfather.

3. The children spend time with the aunt over the Queensland September 2016 school holiday period for up to ten (10) days at times reasonably nominated by the grandfather.

4. The children shall communicate with the aunt at least three (3) times per week in electronic form and each party will let the other party know their address, telephone numbers, email addresses and methods of communication, particularly having regard to Skype and FaceTime, if available.

5. Any time Mr Klare-Reid (‘the father’) spends with the children will be supervised and for the purpose of these interim orders, such time to be supervised by the grandfather subject to him giving an undertaking to the Court that he will remove the children from the presence of the father in the event that the father displays any signs of using or being effected by alcohol or non-prescribed drugs or if there are any signs of violence or abuse to the children or anyone in their vicinity, by the father.

6. The father be restrained from living in the same property as the children.

7. The children B born … 2005, C born … 2007 and D born … 2009 be placed on the Airport Watch List.

8. All parties be restrained from discussing these proceedings with the children or in the presence or hearing of the children.

9. None of the parties shall abuse, demean, belittle or allow any other person to abuse, demean or belittle the other party, members of the other parties’ family in the presence or hearing of the children.

10. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

11. These proceedings be listed before me for mention at 9.00am on Thursday 13 October 2016 at Hobart.

12. Leave be given to the parties to attend by telephone by dialling … then enter passcode …#.

13. Leave be given to the parties to have the matter urgently re-listed before me on the giving of twenty four (24) hours notice to the Court and to the other party and to the Independent Children’s Lawyer in the event of some issue arising out of the implementation of these orders.

IT IS REQUESTED

1. That an Issues Assessment Report be prepared by a counsellor of the Family Court at Brisbane in relation to these children, such interview not to take place until after the children are returned following the September 2016 school holiday period.

2. The interests, in these proceedings, of the children, be independently represented by a lawyer and it is requested that Legal Aid Commission Brisbane arrange an Independent Children’s Lawyer, 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 Registry Manager of the Family Court of Australia at Brisbane.

3. Forthwith upon appointment by the said Legal Aid Commission of Brisbane or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

4. Within forty (48) hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

5. The Independent Children’s Lawyer make submissions to the court on 13 October 2016 as to whether the documents in relation to these proceedings should be made available to Child Protection Authorities in New South Wales and/or Queensland.

IT IS DIRECTED

1. The aunt deliver within four (4) days the children’s passports to the Registrar of the Family Court at Sydney and such passports be held by the Family Court of Australia until further order.

2. A copy of the reasons for these orders be taken out and placed on the court file.

3. The applicant file a further affidavit as to her accommodation, a copy of the lease agreement and some photographic evidence and if the mother wishes to she can file an affidavit of the children’s half-sister, such affidavit to be filed at least two (2) weeks before 13 October 2016.

4. The other parties, if they wish, file such material as set out in order 16 above.

IT IS NOTED

1. These are interim orders and this matter is to come back before me on 13 October 2016 for determination of the interim proceedings once an Independent Children’s Lawyer has been appointed and once there is some social science evidence.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Klare & Klare-Reid and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2218 of 2016

Ms Klare

Applicant

And

Mr Klare-Reid

First Respondent

And

Ms Malcolm
Second Respondent

And

Mr Reid
Third Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These are proceedings relating to the parenting arrangements of three children:  B, aged almost 11, C, aged almost nine, and D, aged seven and a half.

2. The adults involved in the lives of these three children in these proceedings are the applicant, Ms Klare, who is the children’s paternal great-aunt, being the father’s maternal aunt, so it is his mother’s sister, (‘the applicant’) the father, who is currently incarcerated in prison in Queensland, although it is, I envisage, likely that he is to be released in the relatively near future, from the information that has been provided in the affidavits; the children’s mother, who seems to be called Ms E, who lives in New Zealand and has little to do with the children, although I note that she would have been about 16 when she fell pregnant with the eldest of these children, and I understand that she has another child who is currently aged two.  The third respondent is Mr Reid, who is the children’s paternal grandfather and the father’s father (‘the paternal grandfather’).  He is in a relationship with Ms F, and they have been in that relationship for about 14 years, according to the information provided to me.

3. The children’s paternal grandmother was in court today, and she provided an affidavit but is not a party to these proceedings.   I take it that she is not seeking particular orders in relation to these children at this stage, although it is open for her to do so in the future.

4. These children had been living in the home occupied by the applicant and paternal grandmother for a number of years until December of 2015.  It is not in issue that the applicant was significantly involved in their care, although there is an issue as to the extent of that care, having regard to the evidence of the paternal grandmother.  It seems not challenged that the paternal grandmother had problems with alcohol consumption.  It seems not in issue that the applicant was nominated as the primary carer of these children some years ago.  It seems that she was significantly involved in the care of these children until December of last year, and that they were attending local schools.

5. At about that time, the accommodation in which the children, the paternal grandmother and the applicant were staying was lost.  The applicant moved to her sister-in-law’s home.  This was, as I understand it from her perspective, adequate accommodation until other accommodation was found, and, from the father, the paternal grandfather’s and the paternal grandmother’s view, was inadequate.

6. It is clear that arrangements were made for the children to spend Christmas with the paternal grandfather and would see the father over that period.  After the children went to Brisbane, it is asserted by the respondents that a decision was made that the children should remain in Brisbane.  The applicant was told of this decision, and she was not part of the decision-making process in itself and, on the evidence of the paternal grandmother, was fairly unhappy when informed of that circumstance.  There is evidence, but it is not yet tested, that the children had some electronic communication with the applicant after that time, but communication did not follow that, and I will talk about communication a little bit later.

7. The applicant gave evidence today that she has, after some eight or nine months, been provided with accommodation, although that accommodation is not yet in a state where she can move in.  That will happen in the next few weeks, from what I can understand she said.  She says she intends to live in that accommodation by herself and the three children.  She seeks orders, essentially:-

   (a)    that the children live with her;

   (b)    that there be a recovery order to recover the children to her;

   (c)    that the children not be permitted to leave Australia to go to New Zealand or other places; and

   (d)    a series of other orders to ensure that what she says is the arrangements for the care of the children and that they are returned to her as and from as soon as is practicable. 

8. She says that the positions of the children at their respective schools from last year are still in place.

9. The paternal grandfather’s position is that the children have settled into their schools in Brisbane and into the community up there.  He says they are in satisfactory accommodation, and that they are thriving in that environment.  He also says the children have expressed views that they wish to remain there, and, as I said in exchanges between myself and counsel for the paternal grandfather, that, of course, is partisan evidence.  It may be accurate; it may be inaccurate.  I do not know.  But what is clearly evident is that these parties do not get on well, as an understatement, and do not trust each other.

10. The father participated in these proceedings by video link to the prison in Brisbane and says, essentially, he supports the paternal grandfather and wants to restore his relationship with the children and supports the orders that the paternal grandfather seeks.

11. There was a submission that the paternal grandmother is living in Sydney at the present time and is planning to move to Brisbane at some time.

12. There was some delay between the children being retained in Brisbane in January of this year and the commencement of these proceedings in April of this year.  There was also some delay, which is attended in these court processes, through lack of judicial and other resources, for which all I can do on the part of the court is to apologise to the parties.  This matter ought to have been before a judge much sooner.  The applicant has endeavoured to obtain Legal Aid, but it has not as yet been granted, and she has, appealed the refusal to grant her Legal Aid so that someone can act for her.

13. The paternal grandfather is aged 55.  The applicant is aged 53.  The father is aged 30.  The mother is aged 27 and, as I said, has not taken any meaningful steps in relation to these proceedings.  It appears that the father and the mother commenced cohabitation in about 2003 or thereabouts.  B was born in 2005; C in 2007; and D, 2009.  The father apparently had re-partnered and that relationship has failed.  There is a child of that relationship, G, who is aged two, almost three.

14. In 2011 the applicant came to Australia and has been significantly involved in the care of the children since that time.  There is some objective evidence that she was initially paid, although the nature of that relationship will need to be further determined.  In about October 2013 the father was incarcerated on a three year sentence, but he was paroled after 18 months and released, as I understand it, in about April 2015.

15. There is an issue between two of the respondents and the applicant as to the amount of time the father spent with the children between 2011 and December 2015.  It seems not in issue that the father was charged with a number of offences in 2012, including destroy and damage property, contravene an apprehended violence order.  It was not in issue that the father has had difficulties with drugs over most of his life since, at least, his mid-teens or so.

16. It is also clear that the paternal grandfather has been supportive of the father in that context.  It is asserted, although not clear, that the period of incarceration of the father in 2013 was for drug trafficking.  There is some evidence that the father may have been charged with offences in 2005 regarding honesty, although that it unclear.  I do not intend to deal finally with the interim application at the moment, because I do not have sufficient information to do so.  But I intend to put some orders in place so that there is stability in the lives of these children at least for the next four to five months so that they know where they stand.

17. The first order I intend to make, which elicited no objection from the parties, was the appointment of an independent children’s lawyer for the children so that some independent evidence can be gathered and the court can be better informed as to the needs and interests of these children rather than from the subjective point of view of the parties.  The second thing I intend to do is to order a Child Inclusive Assessment to be undertaken which will be a meeting with a social scientist, the responsible adults and a short report prepared. 

18. The question that concerns me at this time is whether I should have ordered the return of the children to the applicant given the passing of some eight months.  If this application had been brought much, much earlier, and I do not blame the applicant for that, she is struggling, I think invariably I would have done so.  What I intend to do at this time is to leave the children in Brisbane, but only for a period of three to four months.  I will bring the matter back before me so that when I have all of the material I can make a reasoned and reasonable decision about whether they should stay in Brisbane or return over the Christmas/New Year period to the care of the applicant. 

19. That seems to me to be the gentlest approach I can adopt for these children for these reasons.  Firstly, I will have some objective evidence as to what the wishes of these children are and given their age and maturity I need to know what that is.  Secondly, I intend to put in place some arrangements so that the children have regular communication with the paternal aunt, because if she is as she describes herself she is a guardian angel.  I might add, if she is as described by others she is somewhat less than that.  I do not know.  But, at least, the children can have time with her and I intend to make an order that they spend part of the next school holidays with the applicant so that they can know that she still cares and loves them.

20. This is not to be taken as a hint as to what will happen, because I will reassess this matter on all of the evidence at some other stage.  I do not intend to permit the father at this stage to reside in the same house as the children.  If the father sees the children it ought to be supervised.  I presume that in the current institution in which he is involved he is supervised.  That is the nature of that.  But then I will have a little bit more information in relation to how safe the children are.  From the paternal grandfather’s point of view the father is quite safe.  From the police record’s point of view and from the point of view of the applicant the father is not safe and he constitutes a real risk to these children in terms of violence, drug use and the like.

21. Accordingly, for that short period of time I will not permit that to occur.  I intend to restrain anyone from removing the children from the Commonwealth of Australia pending the outcome of these proceedings and I intend to put the children formally on the watch list so they can only go with the consent of all of the parties or with the consent of this Court.  I will give leave for the parties to come back urgently to me so if something needs to happen and I can put in place orders without it taking months to get before the Court.  I also intend to order that the children’s passports be placed with a registrar of this Court.  That way if somebody wants to move the children then they have to come and ask me or one of my ilk for that purpose. 

22. I intend, interestingly given the context of it, to require or to order that the applicant and paternal grandfather to have parental responsibility of the children so that they can try and work together if possible to make decisions about the children over the next few months.  Hence the reason to come back urgently.  If that falls over then the parties can come back to me and I will make the decision for them.  I intend for that limited period of time to order the children to live with the paternal grandfather and, as I have said, spend time with the applicant.

23. I intend to make orders that the children have regular telephone and electronic communication.  I have had regard to the submissions of all of the parties, including their written submissions, and I make clear to the parties that sometimes this court does not do justice to adults.  For that I do not apologise.  My task is to do justice for these children.  My task is to make sure these children firstly are safe, secondly have meaningful relationships with their parents, because the Act says that it is important, but thirdly and quite importantly to have meaningful relationships with those in their lives who are significant to them, whether that be a paternal grandmother, a paternal grandfather or an applicant.

24. I intend to make an order restraining the parties from discussing these proceedings in the presence or hearing of the children.  They need to be protected from this.  My guess with these children, who seem to be doing all right in both their schools, is that they simply want to know who these people are and be part of that family.  As to where that should occur, it is Sydney or Brisbane, I will probably determine some time in late October or November of this year.  I cannot allocate a date at the moment, but I will allocate a date within the next few weeks.

1. I do not expect people to come to me.  That will be done by video link from either from Brisbane, Sydney to wherever I happen to be sitting at that time.  It seems unreasonable to put people to that additional expense.  Given that the children were held back in Brisbane I intend to order that the paternal grandfather meet the costs of the children’s airfares to and from Sydney for the purpose of the visit in September.  I intend, given D’s training, he may have to miss out on two sessions of training, but I intend that he leave after 1.00 pm on the first Sunday of the holidays and come back in time for his training on the second Wednesday of the school holidays.

2. So it will be from Sunday afternoon presumably to Wednesday morning depending on what time the training is on.  If it is very early in the morning it will be the Tuesday night.

3. Nothing stops the children seeing their father or their paternal grandmother except that when they see their father it either has to be at the institution in which he currently resides or otherwise supervised.  The supervisors can be arranged as between the paternal grandfather and the applicant and if they can’t agree, again, they can come back to me on very short notice without too much expense.

I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 18 August 2016.

Associate:     

Date:              10 October 2016