Mayne and Harper & Anor

[2013] FamCA 180

FAMILY COURT OF AUSTRALIA

MAYNE & HARPER AND ANOR [2013] FamCA 180

FAMILY LAW – CHILDREN – Consent Orders – child to live with the maternal grandmother or the mother under the supervision of the maternal grandmother – child to spend time with and communicate with the father and paternal grandmother

Family Law Act 1975 (Cth)

APPLICANT: Ms Mayne

RESPONDENT: Mr Harper

INTERVENOR: Ms Jones

INDEPENDENT CHILDREN’S LAWYER: O’Reily Stevens

FILE NUMBER: CSC 182 of 2011

DATE DELIVERED: 27 February 2013

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Benjamin J

HEARING DATE: 27 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gribble

SOLICITOR FOR THE APPLICANT: Legal Aid Queensland

COUNSEL FOR THE RESPONDENT: Mr Pennell

SOLICITOR FOR THE RESPONDENT: Northern Beaches Legal

COUNSEL FOR THE INTERVENOR Mr Worsley

SOLICITOR FOR THE INTERVENOR In person

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Wilson

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER

O’Reily Stevens

Orders

1.BY CONSENT orders 1 to 13 and the Notations contained in the minute of orders tendered to me by the Independent Children’s Lawyer, initialled by me and dated today’s date, an engrossed copy attached hereto and marked Exhibit “1”.

2.BY CONSENT any change to the supervision of the time the father spends with the child pursuant to order 12 may be made with the written agreement of both the maternal and paternal grandmother or an order of a court exercising jurisdiction under the Family Law Act AND IT IS NOTED:-

(a)the material available for any such determination will include the material that was available in the hearing commenced before me on 26 February 2013; and

(b)any subsequent material; and

(c)there has been no finding or determination of fact in relation to the question of unsupervised time.

3.Pursusant to s 65DA(2) and s 62B, 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 DIRECTED

4.All exhibits remain on the court file and any documents on subpoena to be returned to the party who produced the document.

5.The Independent Children’s Lawyer forward an electronic version of the minute of consent orders to my associate within three (3) business days of today’s date.

6.A copy of the reasons for these orders be taken out and placed on the court file.

IT IS FURTHER ORDERED

7.The appointment of the Independent Children’s Lawyer be discharged twenty eight (28) days from the date of this order.

IT IS FURTHER NOTED

8.The maternal grandmother expressly consented to the making of these orders in evidence and by acknowledging the minute of orders, although she was not a party to the proceedings.

IT IS CERTIFIED

9.Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

Exhibit “1”

1.The maternal grandmother have sole parental responsibility for the child [J] born … November 2007.

2.The maternal grandmother must consult with the mother and the paternal grandmother, and take into account their views, regarding issues relevant to the long term care, welfare and development of the child.

3.The maternal grandmother shall keep the paternal grandmother informed of all significant education, health and developmental issues regarding the child.

4.The paternal grandmother shall keep the father informed of all significant education, health and developmental issues regarding the child.

5.These Orders are Authority for the child’s school and treating health professionals to release information upon request to:

a)     the paternal grandmother, and

b)     the mother, and

c)     the father.

6.The child live either with:

a)      the maternal grandmother; or

b)     the mother, under the indirect supervision of the maternal grandmother.

7.The child shall spend time with the paternal grandmother and the father on at least two occasions per year in [B Town, Far North Qld] or at an agreed location, as follows:

a)     the whole of the mid year school holidays each year, and;

b)     one half of the Christmas school holidays in each odd numbered year, and;

c)     four (4) weeks during the Christmas school holidays during each even numbered year, to incorporate Christmas Day.

8.The parties are to equally share the costs of all travel associated with child pursuant to Order 6 above (save and except for costs of the accompanying person, such costs to be borne solely by that person).

9.The paternal grandmother may elect to spend additional time with the child each year at an agreed location, and upon giving reasonable notice to the maternal grandmother.

10.The paternal grandmother will remain solely responsible for any costs arising from and incidental to her time, with the child pursuant to Order 8 above, including costs associated with travel, and such time shall not interrupt the child’s schooling.

11.The maternal grandmother and the paternal grandmother are to consult each other regarding travel prior to booking.

12.If the child spends time with the father, such time will be supervised by the paternal grandmother or [Mr C].

13.The paternal grandmother and/or father may Skype or telephone the child at any convenient time.

NOTATION

Indirect supervision referred to in Order 5 (b) requires the maternal grandmother to remain aware and responsible for the day to day care, welfare and development of the child, notwithstanding the maternal grandmother may not directly observe all daily activities of the child when the child resides with the mother.

A.To facilitate the child’s travel pursuant to Order 6 the maternal grandmother or mother will accompany the child to [D Town, Far North Qld], and the paternal grandmother will accompany the child from [D Town, Far North Qld] to Adelaide.

B.The maternal grandmother, paternal grandmother, mother and father all agree that the issues raised in these proceedings shall no longer be agitated between themselves or conveyed to third persons, and the solicitors involved in these proceedings agree to advise their clients in writing of the specific issues that are not to be agitated beyond these proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mayne & Harper and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 182 of 2011

Ms Mayne

Applicant

And

Mr Harper and Ms Jones

Respondent

And

Ms Jones

Intervenor

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1.These proceedings relate to the child J, (“the child”) who celebrated her fifth birthday in November last year.  Each of the child’s parents was represented in these proceedings, and each of them has significant health difficulties of their own.

2.Fortunately for the child, both of her grandparents, the maternal grandmother and paternal grandmother, and their partners, are significantly and profoundly interested in the wellbeing of this child and of their own children.  Unsurprisingly, when the parents of this child were together, a number of difficulties arose, and each of the grandparents has seen those difficulties through the prism of their own views of their own child and being protective of their child, who are the parents of the subject child.

3.This led to a breakdown in the relationship between the great-grandparents, or the failure of a relationship to develop.  I note the chronology provided by the Independent Children’s Lawyer on pages 8, 9, 10, 11, 12, 13, and 14 of her case outline, which is Exhibit ICL2.  Many of the facts contained in that chronology are not in issue; some are.  The Independent Children’s Lawyer set out on page 16, the agreed or uncontested facts, that is, that the parents began their relationship in 2003, commenced living together in 2005, and separated in November 2009.  It describes the mother’s assessment of intellectual impairment and the father’s assessment of intellectual impairment.

4.It referred to the child’s diagnosis of global development delay, which now, on the evidence, appears to be well-managed in South Australia, although it is clear to me that the last place the father and the paternal grandmother wanted the child moved to was South Australia, bearing in mind the geography and the distance that arises as a consequence of that.  Both the paternal and maternal grandmothers gave evidence yesterday, although the paternal grandmother’s evidence was not completed; she had not been cross-examined by the Independent Children’s Lawyer.  From what I saw of both of them, they were impressive.  They could not otherwise be impressive than to manage the children who are the parents of the subject child.

5.The orders put in place arrangements to enable the subject child to spend significant time with her paternal family, and for her to be safe.  One of the issues which was to be decided and which was causing me enormous concern for the subject child was the allegation that the father may have been an unacceptable risk to this child.  In this Court, it is not a finding that somebody did something wrong, requires an examination of the facts and determine whether there is an unacceptable risk.  Such a finding would resonate in this family for the rest of their lives, and, I suspect, would be used and could be used to undermine the development of the child, and to undermine the relationship between the child end each of her parents, bearing in mind the matters that I have alluded to earlier.

6.As such, I raised with the grandmothers yesterday whether they could find a solution, and to their credit, they did.  It is the father’s hope that at some stage in the future, he can have unsupervised time with this child.  That will need to be a matter for the grandmothers to consider, and if they feel that the child is old enough, protective enough and has the maturity to protect herself, that may be a decision they will make.  If they consider that the father has undertaken treatment and does not present an unacceptable risk, they can make that decision.  However, if at some stage the father wishes unsupervised time and no agreement can be reached, these proceedings can come back to a court on a much narrower scope, and an application can be made at that time for unsupervised time.

7.I hope that doesn’t occur, because the fundamental finding that the Court would have to make is whether the child would be at unacceptable risk, and that would fall into probably three issues: firstly, the maturity and age of the child, as to whether she can be self-protective, and I suspect that is many years away;  secondly whether the father’s disclosure of some sexual thoughts about the child present in itself a risk to the child, and I note that the father had produced evidence; and finally a determination as to whether, on hearing the evidence of certain allegations, which I will not elucidate in these reasons, that adds to the question of an unacceptable risk.  That has not been determined, and is open for a judicial officer some time in the future.

8.Having regard to all of that material, and having regard to the needs of this child to have the stability and love that each of the parents provides, particularly the mother, the support of the grandparents, it seems to me that the orders are, in all of the circumstances, appropriate orders and protective of the child, and those orders are made.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 27 February 2013.

Associate      

Date:              27 February 2013