MALMO & HARTIGAN

[2010] FamCA 447

FAMILY COURT OF AUSTRALIA

MALMO & HARTIGAN [2010] FamCA 447

FAMILY LAW – CHILDREN – Orders by consent – supervisory role of grandparent

Family Law Act 1975 (Cth) s 60CC(2)

APPLICANT: Mr Malmo

RESPONDENT: Ms Hartigan

INDEPENDENT CHILDREN’S LAWYER: Gonzalez & Co.

FILE NUMBER: SYC 478 of 2008

DATE DELIVERED: 28 April 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Faulks DCJ

HEARING DATE: 28 April 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Soliman

SOLICITOR FOR THE APPLICANT: Legal Aid Commission, NSW

COUNSEL FOR THE RESPONDENT: Mr Henaghan

SOLICITOR FOR THE RESPONDENT: Henaghan McLean Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Dura

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Gonzalez & Co.

Orders

IT IS ORDERED THAT:

(These orders are made by consent unless indicated with an *)

1. Ms Hartigan, the mother of M, born … December 2007, have sole parental responsibility of the child.

2. The child, M, born … December 2007, spend time with her father as follows:

   a.For a period of six weeks from the date of these orders:

   i.Each Friday from 11am to 2pm supervised by the *paternal grandmother, Mrs Malmo, commencing on Friday 30 April 2010; and

   ii.Each alternate Sunday from 12 noon to 3pm supervised by R Organisation P/L commencing on Sunday 2 May 2010.

   b.For a period of six weeks thereafter, being 11 June 2010:

   i.Each Friday from 10am to 2pm supervised by the paternal grandmother commencing on Friday 11 June 2010; and

   ii.Each alternate Sunday from 12 noon to 4pm supervised by the paternal grandmother commencing on Sunday 13 June 2010.

3. During all periods the child is spending with the father pursuant to these Orders, the following applies:

   a.The father will not take the child to his place of residence at B;

   b.For a period of 12 hours prior to the time that the father spends with the child, and during the time he spends with the child, he will not consume alcohol or be under the influence of alcohol;

   c.The father will ensure that the child is not brought into the presence of any member of the L Bikie Club.

4. The child will be collected by her paternal grandmother from her mother at H McDonalds at the commencement of each period that the child spends with her father and the child’s mother shall collect the child from the paternal grandmother at D Library at the conclusion of each period.

5. *In respect of each period in which the child is to spend time with her father her father, Mr Malmo, will pay to the mother the sum of $20 to assist in the cost of transport from the mother’s home to D.  The paternal grandmother will hand the sum, on behalf of her son, to the child’s mother on each occasion that she collects the child from the mother. 

6. For the purposes of the child spending time with her father the following will apply:

   a.The child’s father will be responsible for and pay all costs associated with R Organisation’s supervising the father’s time with the child;

   b.*Otherwise the time that the child spends with her father will occur at the home of her paternal grandmother, unless the parents otherwise agree.

7. There be liberty to apply on the part of the Independent Children’s Lawyer in relation to the implementation of these orders.

8. Each parent will ensure that the other parent is kept informed of any medical problems and illnesses suffered by the child while she is in his or her care.

9. Each parent will ensure that the other parent is kept informed of any medication that has been prescribed for the child while she is in his or her care.

10. The child’s mother will provide a communication book with the child when she is handed over to her paternal grandmother and the child’s father will ensure that he reads what is in the communication book and responds if necessary to the messages contained therein.  Each of the parties will confine his or her communications in the book to those matters which relate to the child’s welfare, including matters relating to any medication she is undertaking, any special arrangements for her or other matters which relate to information that the other parent should have. 

11. Each of the parents will keep the other informed of his or her address.

12. Each of the parents be and is hereby restrained from removing the child from the Sydney metropolitan area without the prior written consent of the other parent. 

13. Otherwise all previous parenting orders are discharged.

14. Each of the parents with the child will attend upon a Family Consultant of this Court for participation in the Child Responsive Program (CRP) preparatory to their participating in the first day of a Less Adversarial Trial when that process (CRP) has been completed. 

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 478 of 2008

MR MALMO

Applicant

And

MS HARTIGAN

Respondent

REASONS FOR JUDGMENT

1. I will explain my Reasons for saying that I think the paternal grandmother, Mrs Malmo, should have an opportunity to fulfil a supervisory role in the time the father spends with the child.  It seems clear to me from some of the affidavit material filed by the mother that there was a time, at least, where she accepted that the paternal grandmother was an appropriate person to be involved with and be present for the child and that the child’s interests would be the interests which the paternal grandmother would pursue.

2. I accept that there have been events she asserts, which are not yet the subject of findings before this Court, where doubts that have been raised in her mind.  Doubts are one thing, reality is another.  In these circumstances, when the situation is abundantly clear, we are awaiting a final hearing.  We have an opportunity to assess how the arrangement is progressing and if there are difficulties, as Mr Dura has indicated, the matter can be restored to the list and appropriate adjustments can be made or, for that matter, arrangements terminated if it becomes appropriate to do so.

3. At some point, the parties have to move on from the proposition that there are strangers in professional supervisory organisations who are going to be the go-betweens so far as the child is concerned between the parents. The paternal grandmother may not be someone that at present the mother can put her full-hearted faith and trust in, on the other hand, I have before me the signed undertaking on behalf of the paternal grandmother that she will carry out the duties of being a supervisor in an appropriate way.

4. The undertaking has been adjusted, after my suggestion (and willingly by her) to include the proposition that she will, if necessary, put the child’s interests ahead of her son’s.  It remains to be seen whether that undertaking is honoured.  If it is not honoured, a failure to comply with it is tantamount to contempt of court and will be dealt with accordingly.  I put that statement on the record to make it clear that this is a solemn matter that needs to be properly understood.

5. If the arrangements do not work out as everyone – perhaps everyone apart from the mother – believes they should, then they will not treat them as an experiment. Most particularly, we will not treat the child as an experiment in this.  But it will mean that there is a chance, and I think a reasonable chance, that this will provide an appropriate transition to ensure that the child can have a proper relationship and a meaningful relationship with her father and, importantly, in this context, also with her paternal grandmother.  Little children such as M need the support and assistance of families on both sides.

6. The importance of this is the father has an opportunity to demonstrate that he is going to be a person who can contribute something meaningful to the child’s life.  That means that he does not have to take any notice of what I say.  The father is entitled to say I am a “silly old codger” who is giving him advice which he is not going to take.  On the other hand, the father may want to take advantage of the situation to say, “I will now try to demonstrate that I am going to be a responsible parent for the child”.  If the father takes that opportunity then there is every chance that the child will derive a benefit from having two parents,[1] both of whom love her and that seems to be what might be interpreted from what is in front of me at the moment.

   [1] Family Law Act 1975 (Cth) s 60CC(2)(a) refers.

7. For these Reasons, it seems to me that there is not any unreasonable risk in the arrangements that are being proposed, but they may provide an opportunity for the parties to move forward from where they are.  At the moment they are stuck in fortresses opposite each other and I think we need to build bridges and this is a bridge.  I do not mean to suggest that the paternal grandmother has the physical attributes for a bridge.  But I hope that she will provide that opportunity for the parties.  I will, therefore, make orders in accordance with the minutes that have been handed up to me and I will read out the orders so that there is no doubt about the nature of them and I will make the additions that have been previously suggested. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.

Legal Associate: 

Date:  7 June 2010