Litchfield & Hartmann

[2009] FamCA 721

FAMILY COURT OF AUSTRALIA

LITCHFIELD & HARTMANN [2009] FamCA 721

FAMILY LAW – CHILDREN – with whom a child lives – application by the maternal grandparents seeking that the child aged 15 live with them – where proceedings were previously commenced on behalf of the mother seeking the return of the child to the United Kingdom pursuant to the Hague Convention – where those proceedings were dismissed – where there was no appearance by the mother and it was appropriate for the matter to be dealt with on an undefended basis – consideration of s 60CC factors – where serious allegations were made by the mother about the maternal grandfather – where the allegations are strenuously denied and there is no evidence with respect to the allegations – where the child has expressed a strong preference to remain living with her grandparents – where further disruption to the child’s living arrangements would likely be detrimental to her welfare – child to live with her maternal grandparents and spend time with and communicate with the mother as agreed

FAMILY LAW – CHILDREN – parental responsibility – where the maternal grandparents seek sole parental responsibility – where there is a poor relationship between the mother and the grandparents – where it is not practical to require shared parental responsibility – grandparents to have sole parental responsibility for the child

Family Law Act 1975 (Cth) ss 60CA & 60CC

APPLICANTS: Mr and Mrs Litchfield

RESPONDENT: Ms Hartmann

FILE NUMBER: ADC 3369 of 2008

DATE DELIVERED: 30 July 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 30 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr White

SOLICITOR FOR THE APPLICANT: White Berman

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: n/a

Orders

1. The infant child … born … February 1994 (“the child”) do live with the applicant maternal grandparents and that they have sole parental responsibility for the child.

2. The maternal grandparents are to provide the mother with regular information concerning the child’s schooling and health and provide the mother with copies of school reports and medical reports and ensure that the mother is kept informed of the child’s address at all times, such school and medical reports are to be provided to the mother within seven [7] days of receipt by the maternal grandparents.

3. The child do spend time with and communicate with the mother including by way of letters, email, internet “chat” and/or video link and (provided that the mother shall be present in Australia) in person at such times as shall be agreed between the parties, and in the absence of agreement at such times and on such terms as shall be determined by this Honourable Court.

4. All applications be removed from the pending cases list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3369 of 2008

MR AND MRS LITCHFIELD

Applicants

And

MS HARTMANN

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a matter which concerns the welfare of the child, a daughter, who was born in February 1994 and is therefore now aged 15.  The proceedings which are formally before me today are proceedings which were commenced in the Federal Magistrates Court by the grandparents of the child in August of last year.  At that time the grandparents filed proceedings in which the mother, Ms Hartmann, is the respondent where they sought orders that the child live with the grandparents and have certain specific orders about the time the mother could spend with the child and the arrangements for communication between the child and the mother.

2. Those proceedings were put on hold and transferred to the Family Court of Australia whilst the proceedings commenced by the Central Authority, the Commission of South Australian Police on behalf of the mother under the Hague Convention seeking the return of the child to the United Kingdom, in particular to England were heard.  Those proceedings were commenced in this Court in November 2008.  During those proceedings a Family Report was prepared which involved a Family Consultant carrying out an assessment and, in particular, interviewing the child. I was the Judge who heard the proceedings in relation to the Hague Convention.  In those proceedings the counsel for the Central Authority appeared seeking the return of the child to the United Kingdom.  The respondents were also represented by counsel.

3. On 29 April of this year I delivered my judgment.  Although they are separate proceedings I make it clear at the outset that I have indicated that I take into account my own reasons for judgment in the Hague Convention proceedings and the fact that there was material filed by the grandparents and the Central Authority (which included affidavits of the mother making certain allegations).  I also take into account, in particular, the report of the Family Consultant prepared in relation to the Hague Convention proceedings which gives the clear indication of the child’s views.  That report is dated 21 January 2009, followed interviews with the child shortly in early January 2009. 

4. The matter comes on before me today and there is no appearance by the mother. 

5. I am asked to proceed to hear the matter on a default basis and now give my reasons for my decision to do so. 

6. The Court has attempted to telephone the mother on three separate occasions this morning on the telephone number provided to the case coordinator but no one has answered those telephone calls.  The previous orders made in these proceedings (the proceedings between the grandparents and the mother and not the Hague proceedings) specifically directed the mother to take certain steps.  In particular on 29 April, when there was no appearance for the mother and counsel appeared for the grandparents, I referred the matter to the Docket Registrar for directions on 18 June, gave the mother liberty to apply to attend that hearing by telephone link provided she confirm the telephone number with the Registry by 1 June 2009 and directed the grandparents’ solicitors to inform the mother of those orders and requested the mother indicate her attitude to the Family Law proceedings by filing and serving a response within 28 days from that date (being 29 April 2009).

7. I have the affidavit of the grandparents’ solicitors before me indicating that he complied with that order and the mother was informed of the terms of the order.  Notwithstanding that there was no appearance for the mother at the hearing before Registrar Dore on 18 June 2009.  There is again, as I indicated, no appearance by the mother today and there has been no response filed in these proceedings. I am asked therefore to deal with the matter on an undefended basis. Taking into account the history of the matter, it is appropriate to do so. 

8. I am being asked by counsel for the grandparents to make an order that the child live with the maternal grandparents and they have sole parental responsibility for her. 

9. I am also being asked to make an order that the child spend time with and communicate with the mother by way of letters, email, Internet chat or video link and if the mother is present in Adelaide in person at such times that shall be agreed between the parties and in the absence of agreement, at such times and on such terms as shall be determined by this Honourable Court.  Obviously the question of the particular details of the time to be spent between the mother and the child will remain a matter for negotiations between the mother and the grandparents and if those negotiations are not successful then the mother has the opportunity to bring the matter back before the Court to obtain appropriate orders.

10. I have therefore decided to hear the matter on a default basis and have to take into account, nonetheless, what orders should be appropriate.  In these circumstances the provisions of the Family Law Act 1975 (Cth) continue to apply and in particular I am bound by the sections of Part VII of the Family Law Act, the objects set out in section 60B and the provisions of section 60CA which indicate that when making any order the Court must regard the best interests of the child as the paramount consideration.

11. The Court is directed under section 60CC to take into account certain criteria when considering what is in the best interests of the child.  I pause to say that I am also aware of the particular provisions of the Act which deal with the concept of shared parental responsibility and the need for the Court to take into account those factors.  This, however, is not a situation in which a Court is being asked nor, indeed, is it appropriate to consider the shared parental responsibility.  The persons seeking parental responsibility for the child are the maternal grandparents and in these unusual circumstances the Court order proposed would deprive the parent, the mother, of parental responsibility which would otherwise apply.

12. This is an unusual case.  I need to consider carefully the provisions of section 60CC.  The primary consideration is for the Court to consider the benefit to the child of having a meaningful relationship with the child’s parents and the need to protect the child from harm.  The Court is provided with evidence which indicates that there would, indeed, be a benefit to the child of having an ongoing meaningful relationship with the mother if arrangements could be made which would allow that to happen.  The difficulty, of course, in this case is the distance and the strong preference of the child to remain in Australia residing with her grandparents.

13. In relation to the need to protect a child from harm, I take into account that in the previous Hague proceedings the mother made serious allegations about the grandfather.  Those allegations were strenuously denied by the grandfather.  There is no specific evidence before me in these proceedings in relation to the allegations of sexual abuse or mistreatment by the grandfather.  To the contrary, there is only the evidence, officially on this Court file, of the capacity of the grandparents to provide appropriate care.  I take into account the submissions of the counsel for the grandparents which highlight the fact that, notwithstanding the allegations made by the mother concerning serious conduct by her father, she nonetheless permitted not only the subject child but her other child to remain in the care of the grandparents for days at a time unsupervised at a time subsequent to the events which she alleged occurred.

14. The weight therefore to be given to the allegations made by the mother is seriously reduced.  I also take into account in that regard the Family Consultants report in which the child expressed a strong preference to remain living with the grandparents and expressed no concern about her welfare or safety in that regard.  The first of the additional considerations is the views expressed by the child and any factors to be taken into account such as the child’s maturity or level of understanding.  In that regard I gave serious consideration to the report of the Family Consultant which was available to me in the Hague proceedings.  In that report it was stated that:

    “[the child] presented as mature, consistent and articulate in her provision of information.  She expressed her views with clarity and confidence and appeared to have an excellent understanding of her own needs.”

15. In similar terms the other paragraphs of the Family Consultant’s report emphasised the child’s maturity and understanding.  Again, in particular (but without reducing the significance of other sections of the Family Consultant’s report) I refer to paragraph 24 in which it was said that:

    “[the child] is almost 15 years old and demonstrated an impressively high level of maturity and insight into her situation and own needs during interview.  Her express wishes were congruent with her legitimate needs.  It is appropriate to take account of her views in any decision-making regarding her future.”

16. Taking into account the child’s age, her maturity and the strength of her views this is a significant factor when deciding what orders to make.  In relation to the nature of the relationship with the child and other persons it is clear from the Family Consultant’s report that the child has a good relationship with her grandparents and supports an ongoing relationship with them. 

17. Subsection (c) (the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship with the child and the other parent) is not a significant factor in this matter. 

18. Another significant factor to be taken into account is subsection (d) which refers to the likely effect of change in the circumstances upon the child. 

19. The child has now been settled in South Australia attending the same school for a significant period of time.  Further disruption to her living arrangements would, in my view, be likely to be detrimental to her ongoing welfare. 

20. Subsection (e) refers to the practical difficulty and expense of the child spending time with and communicating with a parent.  This is significant at the moment whilst the mother resides in the United Kingdom.  The proposed order suggested by the grandparents, however, refers to communication by telephone and internet and as well as face to face contact if the mother is in Australia.

21. As far as the capacity of the grandparents is concerned and their attitude to the obligations of parental responsibility, I take into account the affidavit material filed by the grandparents and am satisfied that they will take appropriate steps to ensure that the child is given appropriate care. 

22. The other factors in section 60CC are not significant.  I consider it an unusual case to provide the grandparents with sole parental responsibility at the expense of the mother.  However, in view of the poor relationship between the mother and the grandparents it would not be practical to require shared parental responsibility.

23. However, I propose to discuss with counsel for the grandparents slight amendments to the orders proposed on the basis that the grandparents be required to provide the mother with regular information concerning the child’s schooling and health and provide the mother with copies of school reports and medical reports and ensure that the mother is kept informed of the child’s address at all times. 

24. Weighing up all of the factors in section 60CC, in the unusual circumstances of this case, I am satisfied that it is appropriate to make the orders proposed by the grandparents.

I certify that the preceding twenty-four [24] paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe.

Associate: 

Date:  10 August 2009