Love and Turner and Anor

[2008] FamCA 343

FAMILY COURT OF AUSTRALIA

LOVE & TURNER AND ANOR [2008] FamCA 343

FAMILY LAW – PRIORITY HEARING – Application refused.

Family Law Act 1975 (Cth)

APPLICANT: MR LOVE

FIRST AND SECOND RESPONDENTS: MS TURNER &
MR DRUMMOND

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 11186 of 2007

DATE DELIVERED: 20 MAY 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: BY WAY OF WRITTEN SUBMISSIONS

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: BY WAY OF WRITTEN SUBMISSIONS

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE APPLICANT: STELLA STUTHRIDGE & ASSOCIATES

SOLICITOR FOR THE RESPONDENTS: FELTHAMS LAWYERS

Orders

1. That the application for an expedited hearing is refused.

2. That the application be placed in the list of cases awaiting a final hearing before a judge on a date to be fixed.

3. That there be liberty to apply if the circumstances otherwise change.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC11186 OF 2007

MR LOVE

Applicant

And

MS TURNER
MR DRUMMOND

First and Second Respondents

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is an application for an expedited final hearing of proceedings.  Pursuant to orders, it has been dealt with in chambers on the papers filed specifically relating to the application.

2. The substantive proceeding is about parenting orders.

3. The proceedings began in the Shepparton Magistrates Court in September 2007.  They related to R who was born in January 2006 and J who was born in January 2007. 

4. Whatever caused the proceedings to be issued, on 28 September 2007, in the Magistrates Court, the parties agreed to final orders that the children live with their mother and spend alternate weekends from 10.00am Saturday until 4.00pm Sunday with their father at the home of the paternal grandmother.  The proceedings were transferred to the Federal Magistrates Court of Australia.  The father was restrained from removing the children from the B area.

5. It is important to take a step back.  At the time of those orders, the mother was aged 18 years and the father 19 years of age.  They had lived together for a very short period of time.

6. It is important to note that the orders of 28 September 2007 purport to be final orders notwithstanding the transfer to the Federal Magistrates Court of Australia.

7. On 21 September 2007, the father filed a response document indicating that he wanted “the mother and father share the care of the children equally”. 

8. The record would show that the first listing of the matter in the Federal Magistrates Court was on 29 October 2007.  Just days before that, the mother committed suicide. 

9. The mother’s death sent the proceedings in an unusual direction.  On 2 November 2007 Federal Magistrate Walters sitting at Shepparton had before him, legal representatives for all parties including counsel for the maternal grandmother.  The record shows that consent orders were made for the proceedings to be transferred to the February 2008 sittings and on an interim basis, the children were to live with the maternal grandmother and spend every weekend from 10.00am on Saturday until 4.00pm on Sunday with the father.  Various other orders were made relating to preparation of the matter for trial, the preparation of a family report and for the father to attend a post-separation parenting program.

10. In the period between November 2007 and February 2008, the grandmother declined to participate in the proceedings any further and handed over the children to be cared for by their godparents.  That seems to be the situation when the matter came back before Federal Magistrate Walters on 7 February 2008.  Again parties including the godparents were represented by counsel.

11. The parties consented to orders permitting the godparents to become interveners and importantly, for the children to live with them until further order.

12. Another significant feature of that order was that the father was to spend time with the children on each Friday from 10.00am until 4.00pm however if he obtained employment, his time was to be spent on the following day, that is, Saturday.  A specific order was made that the father produce a report from a psychiatrist as to his functioning and capacity to care for the children on a full-time basis.

13. The February orders bear a notation that the father intended to press his application for the “resumption” of overnight times with the children “once he has suitable accommodation”.  The order therefore speaks for itself as to the state of the father’s capacity to care for the children at that time and the deterioration in his capacity from the earlier orders in September 2007 and November 2007.  The father signed those orders.

14. Finally, on 7 February 2008, Federal Magistrate Walters transferred the proceedings to this Court.

15. On 7 April 2008, the matter came before Registrar Sikiotis who noted that the Independent Children’s Lawyer saw the urgency for interim orders.  Registrar Sikiotis adjourned the proceedings to Senior Registrar FitzGibbon.

16. On 17 April 2008, the matter came before Senior Registrar FitzGibbon.  At the time of writing these reasons, no sealed copy of the order has been provided as a result of which I am determining this matter on the basis of the handwritten minutes noting that the father’s lawyer was ordered to prepare the engrossed minutes.  Senior Registrar FitzGibbon noted the orders of the parties were by consent giving the father time with the children from 9.00am to 6.00pm on Saturday in one week and 1.00pm to 7.00pm on Thursday and 9.00am to 2.00pm on Friday in the second week.

17. Importantly, those orders also provide that from July 2008, the father is to spend time with the children from 10.00am Friday until 6.00pm on Saturday in one week and 9.00am to 6.00pm on Friday in the other week.

18. The parties also agreed upon procedural orders and an order that the children attend upon a child psychiatrist.  Senior Registrar Fitzgibbon also made orders that the father file a summary of argument by 8 May 2008 relating to an expedited hearing and that all other parties have until 15 May 2008 to respond. 

19. The father filed a summary of argument in which reference was made to s 68F(2) which presumably should refer to s 60CC.  Having said that , doing the best I can, I discern that the reasons for the expedited hearing are that:

    (a)the godparents are not family and were strangers to the children when placed with them;

    (b)the father is in a position to care for the children having secured private rental accommodation in central Victoria.

20. The respondents filed their material late but said they neither consented to nor supported the applicant’s position. 

21. The Independent Children’s Lawyer did not file any response.

22. In his affidavit filed 2 November 2007, the father said that the Shepparton Magistrates Court proceedings in September 2007 did not provide enough time for an interim hearing and he reluctantly agreed to the orders that were made.  He then went on to acknowledge that he had had “contact with the criminal justice system” using drugs, alcohol and “hanging around with the wrong crowd”.  He conceded a mild intellectual disability and had been on youth justice orders including a community based order for unlicensed driving, theft and theft of a motor vehicle.  He conceded having matters pending before the Bendigo Magistrates Court for a breach of the community based orders including involvement which he seemed to try to justify in an incident with his brother that looked remarkably like a violent robbery.

23. He said that he received a disability support pension and had the time to devote to caring for the children.  That was his position in October 2007 prior to the consent orders being made to which I have already referred.

24. The father provided a further affidavit which was filed on 14 January 2008.  He said much the same as the earlier affidavit.  He said that he had been trying with his partner for three months to get a house without success and hoped to have the children with him after that.

25. On 28 March 2008, the father filed another affidavit.  This was a response to affidavit material filed by the godparents.  It sets out the difficulties that he had encountered when spending time with the two children subsequent to the orders being made.  He expressed concern about things that he was not told.  In respect of the godparents’ capacity to care for the children and their personal position, he said:

    I may not have as much money as […] and […] (the godparents) but I am the father of these children and I love them and am committed to caring for them.

26. He then made the following statement:

    I have had problems in the past that contributed to my involvement in crime.  It does not mean that I place less of a priority on my children.  I have worked through those problems.  I have completed one supervised urine screen that was provided to the parties at court in Shepparton on 4 February 2008.  I do not use drugs and the results show that.

27. He went on then to say that the children belonged with him as their father and that although one of the godparents may earn more money than he did, it did not mean that the godparent could care for the children better than he could.

28. Finally, the father said that he thought that it was in the best interests of the children to live with him because he had suitable accommodation, had done a Family Wellness course and reinforced his parenting abilities.  He said he was no longer taking drugs.

29. In this case, there have been three opportunities for the parties to work out the caring arrangements for these very young children in the tragic circumstances that they have faced.  On each occasion, regardless of the circumstances at the court, the parties have reached agreement.

30. One of the significant issues in the lives of children is stability.  The amendments to the Family Law Act 1975 (Cth) (“the Act”) that came into operation on 1 July 2006 have not changed that position. Section 60CC sets out clearly the objects to which a court must turn when deciding what it subjectively believes in is the best interests of children. There is no peculiar priority given to parents in the legislation. What is important in a final hearing is that the court follow s 60CC and in particular, the provisions relating to what has happened subsequent to separation and in the period of time subsequent to orders being made.

31. Notwithstanding the two reasons to which I have referred above that the father advances for a priority hearing, it is clear that the children are together and being cared for properly and appropriately by people to whom the father consented as carers.  That care apparently could not have been provided by the father at that time as is evidenced by the affidavits that I have referred to in relation to his accommodation let alone his lifestyle.

32. It is the policy of the Court to try and hear every matter expeditiously but an application such as this endeavours to have the hearing placed ahead of other cases.  The case management directions require the applicant to satisfy the Court that there are special reasons why that elevation should be given.  “Special reasons” means what it says namely something unusual or out of the ordinary.

33. In this case, I am satisfied that there is nothing more urgent than usual nor that there is anything unusual about the case to warrant expedition.  Accordingly, the application is refused.  I propose to also make an order that the case await a listing for final hearing before a judge.  As usual the parties have liberty to apply should the circumstances change.

I certify that the preceding Thirty Three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  20 May 2008