Love and Shillington (No. 3)

[2007] FamCA 565

FAMILY COURT OF AUSTRALIA

LOVE & SHILLINGTON (NO. 3) [2007] FamCA 565

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

APPLICANT: MR LOVE

RESPONDENT: MS SHILLINGTON

INTERVENOR: MRS SHILLINGTON

FILE NUMBER: BRF 2102 of 2004

DATE DELIVERED: 29 May 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 29 May 2007

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT In person

INTERVENOR: In person

INDEPENDENT CHILDREN'S LAWYER Ms Awyzio, Solicitor, DA Family Lawyers

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. Until 11 September 2007 or earlier order, the child, a daughter, born … September 2000, live with the Mother and the Mother be responsible for the day-to-day care of the said child.

1. The Father spend such time with the said child as may be agreed to between the parties, in consultation with the Independent Children’s Lawyer.

IT IS ORDERED THAT

1. The trial dates for the final hearing of this matter be moved to the 5 days commencing 20 August 2007 and 2 further days on 10 and 11 September 2007, should they be required.

IT IS DIRECTED THAT

1. The Father file and serve any material upon which he intends to rely on or before 13 July 2007, such material to include an affidavit by the father’s partner.

1. The Mother and the Maternal Grandmother file any material in reply to that material and any material upon which they intend to rely on or before 31 July 2007.

1. The Father have the opportunity to file, should he choose to do so, any material in reply to the material of the Mother and Maternal Grandmother on or before 10 August 2007.

1. The Independent Children’s Lawyer file any material upon which she intends to rely on or before 16 August 2007.

1. Each of the parties file a List of Documents upon which they intend to rely on or before 16 August 2007.

IT IS FURTHER ORDERED THAT

1. The Department of Child Safety provide a copy of their file in respect of the child, Baby B, born … May 2006 and that the Independent Children’s Lawyer only be at liberty to inspect the file.

1. The Mother and the Maternal Grandmother attend upon Ms W for the purpose of interviews for the updated report on 23 July 2007 at a time to be advised by the Independent Children’s Lawyer and that they ensure that the child, …, attends for the purpose of those interviews on that day.

1. The Father and the boys, the younger son and elder son, and the Father’s partner, Ms D, attend upon Ms W for the purpose of interviews for the updated report on 24 July 2007 at a time to be advised by the Independent Children’s Lawyer, and that the child, the daughter, also attend for the purpose of those interviews on that day.

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: BRF2102 of 2004

MR LOVE

Applicant

And

MS SHILLINGTON

Respondent

And

MRS SHILLINGTON

Intervenor

REASONS FOR JUDGMENT

EX TEMPORE

1. This is, as I have said, I believe, on a number of occasions and again this morning, a worrying, complex case, with the welfare of a number of children at stake, but the immediate welfare of the daughter directly in focus, and previous judgments set out the background to the matter which resulted in the daughter being placed in the care of her maternal grandmother as a temporary measure.

2. There is wide dispute between the parties about the circumstances which led to that turn of events.  The daughter had traditionally been raised by her father with her brothers and father's partner and her children, and at the beginning of this year issues developed in the father's household between the daughter and other members of the household, which resulted in the father contacting the maternal grandmother and asking her to look after the daughter.

3. As I say, what caused the difficulties in the household, the nature and extent of the difficulties in the household and what were the intended arrangements between the father and the grandmother, are issues of high dispute between the parties and the grandmother, the father and the mother, and this matter is so complex that it has been listed for seven days in anticipation that, if all matters remain alive and all factual questions have to be answered, the three parties involved and the Independent Children's Lawyer would be likely to take that amount of time to properly canvas the issues involved.

4. As I say, as a consequence of events at the beginning of this year, the daughter was placed in the care of the maternal grandmother.  She resides at M.  The father resides on the South Queensland Coast, as does the mother.  Another complicating factor is that the mother has a history of alcohol abuse and dependency which has resulted, no doubt in part, for the children not being in her primary care since separation, I believe, but in any event, for some considerable time.

5. The mother asserts that she has finally come to grips with her disease and that she is rigorously addressing all processes necessary to ensure that she never again abuses alcohol.  Of course, the father is highly sceptical about that assertion, as indeed members of the mother's own family are cautious, because the nature of the disease is such that those sorts of promises, no doubt, have been made before and broken, so the mother acknowledges the uncertainty of others, but she says she is committed.

6. She has submitted to programs undertaken by the various government agencies designed to address her problems, particularly in the context of the mother having a young boy, B, who is now 12 months old, and the Department having determined that, at the height of her addiction, she was simply unable to properly care for the child and the child was taken into care.  The mother has evidenced (a) an interest in being reunited with her son, and (b) addressing her alcohol problems, and the Department has been monitoring the situation now for some months.

7. Unfortunately, efforts to bring the daughter together with her brothers and opportunities to explore ways of bringing the daughter and her father together, in circumstances where the Independent Children's Lawyer is satisfied and the Court can be satisfied that the significant emotional issues surrounding the events of earlier this year are properly addressed, has not come to pass, and one of the many great sadnesses in this sad case is the fact that the daughter has now, for so long, not had the opportunity to see her siblings or her father.  Orders were made on 5 April to at least facilitate contact between the children but, as I understand it, the father failed to make the boys available and, as I say, unfortunately the children did not get to spend any time together. 

8. The situation now is that between now and the trial there is the question of the on-going care arrangements for the daughter.  The maternal grandmother is 75 years of age.  She is somewhat isolated in M.  She has, I accept, limits to her financial resources, limits to her capacity to continue to juggle with the logistics and dynamics of this difficult situation, and at age 75 she is entitled to look to the Court for some relief from the onerous task that has really been thrust upon her and not sought out by her in the beginning of the year, although she has willingly stepped in to fill the void.

9. She says that she thinks her grandchild firstly wants to be with her mother, loves being with her mother and misses her mother while she is away, and that it is in the daughter's best interests to be with her mother.  The mother has filed material and made a passionate plea, as it were, to the Court that it is in the best interests of her daughter that she not be required to continue to endure the separation from her father, brothers and mother and the weekly routine of spending time with her mother and then being separated from her mother.  I should indicate that the mother has travelled from the South Queensland Coast to M each week to spend time with her daughter, notwithstanding the demands of the program that she is on and the demands required of her in relation to her one year old baby.

10. The mother informed the Court that the Department was supportive of the notion of the daughter residing with her, although they were concerned, I gather, at the prospect of the mother suddenly being charged with the full time responsibility of two young children, including a one year old baby, and apparently entered into some discussions with the mother designed to explore ways of properly managing the current difficult circumstances, and the mother, as I am informed, voluntarily agreed to an extension of the supervision of her relationship with the baby, so that she might be able to make herself available to provide full time care for the daughter pending the hearing of the matter before the Court.

11. She says to the Court that, as much as she is committed to the baby and wants to have him with her, under the present circumstances, she sees the daughter's needs as more immediate, the baby being well cared for and she being convinced that the daughter is finding it difficult to cope with the emotional challenges of the current situation.

12. The Independent Children's Lawyer has made independent inquiries of the Department, both yesterday afternoon and again this morning, and essentially the information she received from two Departmental officers corroborates what the mother has said.  It is now in the contemplation of the Department, the prospect that the daughter may be in the mother's care.  They have indicated to the Independent Children's Lawyer that they are quite prepared to continue to provide not only the support that has been provided to date, but even more vigilant supervision and support in the event that the daughter is in her care.

13. The father has informed the Court in the face of these applications that it is a matter for the Court.  He did not wish to make submissions one way or another and left the matter to the Court.

14. In my view, what one needs to put in place until the Court can get to the bottom of the complex issues in this case, is an arrangement which serves to minimise as much as possible the difficulties for the daughter.  I am satisfied that the daughter has suffered as a result of the events of this year and, in particular, separation from her father and siblings and other members of that household, the separation from her mother, the coming and going of her mother, and like the Independent Children's Lawyer, given what the mother has set out in her material, given her apparent sobriety for five months, given the Department's intention to continue to closely monitor the situation and the likelihood that a six year old child would be more comfortable and derive more emotional support from an available parent in more familiar circumstances than prevail in M, I am satisfied that it is in the child's best interests that, pending the further hearing of the matter, she live with her mother and her mother provide her with day to day care.

    ORDERS DELIVERED

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan  

Associate: 

Date: