Love and Shillington

[2007] FamCA 564

FAMILY COURT OF AUSTRALIA

LOVE & SHILLINGTON [2007] FamCA 564

FAMILY LAW - CHILDREN - With whom a child lives - With whom a child spends time - Interim

APPLICANT: MR LOVE

RESPONDENT: MS SHILLINGTON

INTERVENOR: MRS SHILLINGTON

FILE NUMBER: BRF 2102 of 2004

DATE DELIVERED: 8 February 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 8 February 2007

REPRESENTATION

APPLICANT Appeared on his own behalf

RESPONDENT Appeared on her own behalf

INTERVENOR Appeared on her own behalf

INDEPENDENT CHILDREN’S LAWYER: Ms Awyzio, DA Family Lawyers

Orders

1. The Maternal Grandmother, Mrs Shillington, has leave to intervene in these proceedings.

1. The matter is adjourned for further hearing to the Judicial Duty List before Justice Jordan at 10.00 am on Wednesday, 28 March 2007.

BY WAY OF INTERIM ORDER

1. The child, a daughter, born … September 2000, shall live with the Maternal Grandmother.

1. The Maternal Grandmother shall be responsible for the day-to-day care, welfare and development of the said child while she remains in her care.

1. The Mother shall spend time with the said child at all times agreed to between the Mother and the intervening Grandmother, provided that any time the Mother spends with the child is to be under the fulltime supervision of either the Maternal Grandmother, Mrs Shillington, or the Mother’s sister, Ms J.

1. The Father shall spend time with the said child as may be arranged and agreed to between the Father and the Maternal Grandmother, Mrs Shillington provided however that the Father ensure that the said child is not brought into contact with his partner, Ms D, during any such time spent with the said child.

BY WAY OF FURTHER ORDER

1. Pursuant to Section 91B of the Family Law Act 1975, the Director-General, Department of Child Safety, is requested to intervene in these proceedings in relation to the child, a daughter, born … September 2000.

1. The Registry Manager is to notify the Director-General, Department of Child Safety, of this order.

1. Upon request from the said Director-General, Department of Child Safety, the Registry Manager permit inspection of the Court file by a person authorised by the Director-General, Department of Child Safety, and copying of any part of it to enable consideration of the request to intervene in the proceedings.

1. An updated Family Report is to be prepared and it is requested that Ms W be appointed as the Reg 8 Counsellor to prepare such report.

1. The Maternal Grandmother shall file and serve an application for leave to intervene and an application for any ongoing orders and an affidavit in support of such application on or before 13 March 2007.

1. The Father shall file and serve upon the Mother, the Independent Children’s Lawyer and the intervening Maternal Grandmother any applications and affidavits he wishes to place before the Court on or before 13 March 2007.

1. The Mother shall authorise her treating medical and allied health professionals to provide any information about her progress with treatment for alcohol addiction to the Independent Children’s Lawyer and/or Ms W, as may be requested.

1. Pursuant to s65DA(2) and s62B, 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.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Jordan delivered this day will for all publication and reporting purposes be referred to as Love & Shillington

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 2102 of 2004

MR LOVE

Applicant

And

MS SHILLINGTON

Respondent

And

MRS SHILLINGTON

Intervenor

REASONS FOR JUDGMENT

EX TEMPORE

1. It seems to me that I am dealing with a number of people in crisis.  I have already referred to the mother's crisis in very grave detail during the course of my judgment during the final hearing of this matter on 3 November 2006, so I have no need or no intention to reiterate what was clearly identified in that judgment in relation to the mother's past, current and future circumstances.

2. At that stage, I purported to make final orders in relation to the three children in question, the elder son who is 13, the younger son who is 10 and the daughter who is 6.

3. There have been very significant developments since that time which indicate that there are now crises elsewhere in terms of the father's household, in relation to the daughter in particular, who is in the care of the maternal grandmother, who is attending by telephone and who has sought leave to intervene, and whom I grant leave to intervene.  The daughter has been with the maternal grandmother since 14 January in M and has been attending a local school since the commencement of the school year.

4. The matter has been brought on on quite short notice and the parties and the Court have only just now received a very recent report by a Ms W, social worker, who has had involvement with the family, I understand, since 2004.  She has prepared three previous reports and this report today.  As a consequence, the parties, and the father in particular, has had very limited opportunity to respond to matters raised and to provide any information he would wish to provide to the Court in affidavit form, or in relation to any applications.

5. It seems to me that I am not well placed to have a proper appreciation of all of the circumstances surrounding these developments and that what I should focus upon until such time as both the Independent Children's Lawyer and the Court is better informed, is putting in place some short term arrangements for the most important person in this exercise at the moment, who is the daughter.  I reject absolutely the father's assertion that my concern is about the welfare of the mother and not the welfare of the children, or the daughter in particular.  I am very surprised and disappointed by that suggestion, given what was set out in my judgment, which was, I thought, a judgment which contained very, very telling observations against the mother, and largely supportive of the father's position.  But if the father wishes to believe that I am only concerned about the mother, he is at liberty to do so.

6. I record that, consistent with the oath of office I took and the obligations under the Family Law Act, my focus is fairly and squarely upon the best interests of the children and, in this context, of the daughter, who at the ripe old age of 6 finds herself now in quite a difficult situation. What we need to do is focus on that and what can be done between now and such time as the matter is back before the Court and the father is given adequate opportunity, if he chooses to do so, to further explain his circumstances, because his concern is that the report of Ms W does not tell the full story.

7. As I understand it, the options available to the Court are to leave the daughter with the maternal grandmother, to place the daughter in the full-time care of her mother, or in some way consider an option of having the daughter placed in the care of some third party, which, as I understand the option, would be foster care.  Of course, this Court does not have the power to place the daughter into foster care, and there are no other neutral third parties who have come forward, and the Independent Children's Lawyer, the mother and maternal grandmother do not want the daughter in foster care, and the grandmother remains available to temporarily look after the daughter on a day to day basis.

8. Consistent with my earlier observations in my judgment of November of last year, as I said on that occasion, the mother's rehabilitation, given the long standing nature of her disabilities in the past, is at a very early stage.  The Court has received an assurance from the mother that she continues to meet milestones and manage her personal life, but given the early stages of that process, the Independent Children's Lawyer would like to be able to make some independent inquiries about such matters, and certainly I would like to receive more information on that front.

9. It really seems to me that the only proper and viable option is to make an order which provides the daughter with stability and continuity until such time as further investigations can be conducted.  She has been with her maternal grandmother since 14 January.  She has started a new school and she reports to Ms W that she likes the new school.  Given the turmoil that has unfolded in the father's household, and he himself describes it as being so severe as to bring him to this rather drastic situation, and I gather he is saying that this was obviously not a decision lightly made, one can only assume that the position in the home had become extremely bad for all concerned, and the daughter played a key role in that one way or another, and she was then placed with the maternal grandmother and, as I say, started school.

10. The last thing, in my view, that this little girl needs would be to be removed from a family person in the terms of her family, placed elsewhere and having to come to know other people, and possibly being removed from school and starting again.  Given what has happened in the last month, that would be simply asking too much of this child.

11. So I am satisfied that, in this extraordinary circumstance and as an emergency measure for the short term, I should make the following orders.

ORDERS DELIVERED

1. As I say, I am anxious that the father should be given the opportunity to be properly heard in this matter, he being required today to really deal with this matter largely on the run.

2. I am not sure what the father's position will be in the short term and medium term. I have in mind listing the matter to come back before me sooner rather than later, and that it should be listed on 28 March, by which time the Independent Children's Lawyer would have had the opportunity to conduct some further investigations. I propose to make an order for the intervention of the Department, pursuant to s 91B to facilitate exchanges of information.

3. I then need to focus on the arrangements in the meantime.  It seems, as best I can understand the father's position, from what he has said today and from reading the report, that his motivation in part, and as I say, I do not understand the entire story, was that there was really a need for some time out, for some respite on all sides.  I am of the view that, if I stand this matter over to 28 March, that really provides further respite and that the child should be left free to largely concentrate on her schooling.  I understand there may still be some problems in the father's household.  The boys' attitude to their sister is only mentioned with passing reference in the report.  Again, the father is reported as saying that his partner remains extremely upset and is not ready to have contact.  The mother says that the daughter would also be opposed to the idea of contact with the father’s partner, and Ms W makes some observations in relation to those matters.

4. As this matter will be back in six weeks' time, I would propose that, if there is to be contact, it be as agreed to between the father and the maternal grandmother.  Hopefully, they can make some appropriate arrangements.

5. I accept the recommendation of the Independent Children's Lawyer that, at least over the next six weeks, the daughter should not be brought into contact with the father's partner,  and that an injunction should be issued restraining the father from bringing the daughter into contact with his partner.

6. This very unexpected and very significant turn of events really paints a very different picture in relation the prospect of the daughter having contact with the mother.  The father remains strongly opposed to that prospect and, indeed, is concerned that any problems in the daughter's presentation are as a result of adverse influence from the mother.

7. Again, I am in a very, very difficult position to judge these matters.  I cannot make any determination as to the validity or otherwise of that proposition at this stage.  All I can say is, as I said on the last occasion, that I was impressed with the motivation of the mother’s sister and her child focus and own reservations about her sister's rehabilitation.  Notwithstanding that, as I understand it, and again only through the report, the father has subsequently had some concerns about the veracity of the mother’s sister in the proceedings before me.

8. I note that it appears that, when the father was contemplating care arrangements for the daughter, he first approached the mother’s sister which, as I say, is consistent with the impression that the father would not choose to place his daughter with somebody he did not trust and who would not care for her, and he first approached the mother’s sister, and he then approached the maternal grandmother.  So I can only, in a sense, back the father's judgment that those people are capable, caring people, and the daughter would be well cared for by the maternal grandmother and/or the mother’s sister.

9. Similar to my earlier observations, and despite the fact that I have not had a personal assessment of the maternal grandmother, I take the view that, as a temporary measure, they would each stand as appropriate people to supervise contact between the daughter and her mother.

10. I do not know, and am in no position to judge, the extent to which there is any enmeshment in the relationship between the mother and the daughter.  What I can more confidently predict is that, given the difficult circumstances which have emerged for the daughter since the matter was last before me, the daughter is likely to be feeling a little battered and bruised emotionally, she is likely to be missing her father and her brothers, she is more likely, in that circumstance, to be looking to her mother to provide her with some nurture and support.  I feel it would be harsh indeed, as does Ms W, to deprive this little girl of ongoing association with her mother, notwithstanding the father's reservations about the benefits that derive from such contact.

11. I feel we need now to deal with very, very basic issues relating to the needs of this child.  She needs all the love and affection and support she can get in this difficult stage of her life.  As I said in November of last year, whatever be the mother's failings, I was satisfied that she does, indeed, love her daughter and has affection for her, and if she remains well, she would have much to offer her daughter.  So I am not intending to deprive the daughter of the opportunity to have some appropriate levels of support from her mother, under the supervision of the mother’s sister and the maternal grandmother.

12. I am satisfied that the mother should have the opportunity to have contact with the daughter at the maternal grandmother's home, or elsewhere under the supervision of the maternal grandmother or the mother’s sister.  Which would also give rise to the prospect of the mother having contact, either in M or on the Queensland Coast, provided that either the mother’s sister or the maternal grandmother are at all times present and available to personally supervise any time the daughter has with her mother.

13. I am going to make an order for an updated report, and I am going to request the engagement of Sue W as a Regulation 8 counsellor.  I understand if I make that order, she would be in a position to have ongoing involvement, but I understand that, given if that appointment is made now, she will not be paid for the report that has just been done for the Court.

ORDERS DELIVERED

1. I want the father to be given the opportunity in a timely way to place any material before the Court he wishes to place before the Court, and/or to file any applications.

ORDERS DELIVERED

RECORDED :  NOT TRANSCRIBED

I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: