Learey and Macarthur and Anor

[2018] FCCA 898

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEAREY & MACARTHUR & ANOR [2018] FCCA 898

Catchwords:
FAMILY LAW – Parenting – final consent orders amended by the Court in the absence of one of the parties who failed to appear.

Applicant: MS LEAREY

First Respondent: MS MACARTHUR

Second Respondent: MR LEAREY

File Number: PAC 5389 of 2015

Judgment of: Judge Hughes

Hearing date: 12 April 2018

Date of Last Submission: 12 April 2018

Delivered at: Parramatta

Delivered on: 12 April 2018

REPRESENTATION

Solicitors for the Applicant: Mr Brown

Solicitors for the Respondent: No appearance

Solicitors for the Second Respondent: No appearance

Solicitors for the Independent Children’s Lawyer: Ms Rutkowska

ORDERS

1. The applicant paternal grandmother and the Independent Children’s Lawyer have leave to proceed in the absence of the parents today.

2. Final orders are made in accordance with the Minute of Orders as amended by the Court dated 11 April 2018, placed on the Court file and annexed hereto.

3. The solicitors for the applicant paternal grandmother shall email a typed copy of the Minutes in Word format to my Associate by 2pm on 13 April 2018.

4. The appointment of the Independent Children’s Lawyer is dismissed.

5. Otherwise all extant applications are hereby dismissed.

IT IS NOTED THAT

A.The father has not significantly participated in these proceedings.

B.The remaining parties – the applicant paternal grandmother, the respondent mother and Independent Children’s Lawyer – reached agreement and signed a Minute of Final Orders on 11 April 2018.

C.The Court was not prepared to make the orders in chambers and wished to discuss them with the parties. The hearing date of 12 April 2018 was not vacated and the matter remained listed today.

D.Despite this being communicated to the solicitors for the mother there was no appearance by or for her today.

E.The orders as amended have the consent of the paternal grandmother and the Independent Children’s Lawyer.

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

ANNNEXURE 1

1. That the mother have sole parental responsibility for the child X (born (omitted) 2007) (“X”) except as provided in these orders.

2. That the mother shall advise the applicant paternal grandmother of the current school of X and shall immediately advise the paternal grandmother of any change of school of X.

3. That the applicant paternal grandmother shall be entitled to obtain from the school of X all school reports in relation to X, and any Naplan or other external academic assessment in relation to X.

4. That the applicant paternal grandmother shall be entitled to obtain from the New South Wales Department of Education, or such equivalent Department in New South Wales or any other State in Australia any information to indicate which school X attends.

5. The mother shall immediately advise the applicant paternal grandmother of any medical practitioner or other health professional who has treated or has been consulted in relation to X since 1 January 2017.

6. Until X reaches the age of 14 years, that the applicant paternal grandmother shall be entitled to contact such medical practitioner or other health professional and obtain from them such information as she may request including any medical report in relation to X and including any information as to any other medical practitioner or health professional to whom X has been referred or is otherwise treating X.

7. That the mother shall advise the applicant paternal grandmother, and keep her advised, of the contact details of X including his email address, residential address and telephone number.

8. That the applicant paternal grandmother shall be restrained from contacting or approaching X at his residential address or telephone number, unless X agrees to the same, but may contact X by email.

9. Pursuant to s.65DA(2) and s.62B, 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 the 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.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5389 of 2015

MS LEAREY

Applicant

And

MS MACARTHUR

First Respondent

MR LEAREY

Second Respondent

REASONS FOR JUDGMENT

Extempore

1. These are parenting proceedings brought by the applicant paternal grandmother in relation to the child X, who is currently aged seven. 

2. X lives with his mother, step-father and half-brother.  The grandmother said she had a very active role in the child’s life until the mother moved to an undisclosed location in the (omitted) area of NSW and cut off all contact with the child. 

3. The mother said she was the victim of serious violence at the hands of the child’s father and that it was necessary for her safety and the safety of the child to move some significant distance away from him. She said in her material that all of the child’s needs are being met within her household. The mother alleged the father was a member of an outlaw motorcycle gang and using illicit drugs. It seems to be common ground that the father suffers from schizophrenia. He has not participated to any significant extent in these proceedings and has not appeared today.

4. The matter was listed today for a final hearing.  Yesterday the parties provided to me in chambers a set of orders which had been signed by the paternal grandmother, the mother and the independent children’s lawyer.  I was not prepared to make the orders in chambers because, despite the child and the grandmother having no current relationship and the child indicating he was vehemently opposed to having any relationship with his grandmother or his father, the orders provided for the grandmother to obtain extensive information about the child’s education and to have unlimited access to the child’s treating medical professionals and medical records. 

5. The child is 10.  He will be 11 in (omitted).  He will in the next few years be entering adolescence.  There may be issues he discusses with his doctor which he would like to remain private and not be discussed with his grandmother with whom he has not had a relationship for some time and with whom he does not wish to have a relationship. 

6. The parties and their solicitors were told that the Court was not prepared to make the final orders without further discussion and that the matter remained listed for final hearing today.  Despite that, the mother’s solicitors have failed to appear.  The Court made a number of attempts to contact the mother’s solicitors by telephone and was advised that she was in another Court.  In those circumstances I have dealt with the matter in the absence of the mother.  The grandmother has taken the trouble to appear by way of telephone link with her solicitor.

7. As a result of discussion with the independent children's lawyer and the grandmother’s solicitor, the orders proposed by the parties have been modified to an extent which satisfies me there is no inappropriate or prolonged intrusion into the privacy of the child.  The grandmother’s access to the medical records will cease once the child reaches the age of 14 years.  

8. I am told the intention of the orders concerning the child’s education was to allow the grandmother to obtain from the Department of Education information about which school X attends because in the past the mother has changed the child’s school without advising the father or the paternal grandmother.  I am also prepared to make the orders which allow the paternal grandmother to obtain a copy of X’s school reports because that will allow her to keep up with the child’s interests and how he is going at school and, if it appears that there are serious non-attendance issues or that he is struggling in some way, the grandmother will have an opportunity to have some influence from afar by perhaps notifying child protection authorities who have statutory responsibility for the welfare of the child.  That is really the only option she will have once these proceedings end. 

9. The evidence has not been tested because the parties came to an agreement.  There are a lot of unsatisfactory aspects to the matter.  The allegations made by the mother about violence were detailed and compelling and, if true, the mother may be acting protectively in relation to her son by moving to an undisclosed location.  There is similarly no reason for me not to accept the evidence of the grandmother that she is motivated by love of her grandchild and not by any malice towards the mother. 

10. In my view these orders, having been amended slightly, strike an appropriate balance between allowing the child to get on with his life in the family that he now has with his mother, stepfather and half-brother and providing a level of protection through the grandmother having access to his school reports and medical information up to the age of 14. They will also allow some connection so that if the child wants to reconnect with his grandmother in the future, she has a little bit more information about him to assist in meeting him in that endeavour. 

11. This is a sad case and the outcome is not ideal.  In all of the circumstances, however, I am satisfied the orders as amended meet the best interest of the child. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Hughes

Date:  16 April 2018