Mortenson and Parker and Anor

[2007] FamCA 368

FAMILY COURT OF AUSTRALIA

MORTENSON & PARKER  AND ANOR [2007] FamCA 368

FAMILY LAW - CHILDREN – Live with – Spend time with

Family Law Act 1975 (Cth)

APPLICANT: MRS MAYBURY

RESPONDENT: MS MAYBURY

RESPONDENT MS PEARSALL

FILE NUMBER: SYF 4662 of 2003

DATE DELIVERED: 16 April 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 16 April 2007

REPRESENTATION

APPLICANT: In person

RESPONDENT MOTHER In person

SOLICITOR FOR THE RESPONDENT: Legal Aid Commission of NSW

Orders

1. The Application in a Case filed by the maternal grandmother on 18 December 2006 is dismissed.

1. Any Amended Application for Final Orders is to be filed and served within two weeks from today’s date.

1. The Court requested that arrangements be made for two Auslan interpreters to assist the mother on the first day of the Less Adversarial Trial on 25 May 2007

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4662 of 2003

MRS MAYBURY

Applicant

And

MS MAYBURY

Respondent Mother

And

MS PEARSALL
Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to a child, a daughter, who was born in June 1993.  She will be 14 years of age in June of this year.

2. On 18 December 2006 the maternal grandmother filed applications seeking final and interim orders. On a final basis she seeks an order that the child spend time with her.  On an interim basis she seeks an order that the child spend time with her. I note that the child now lives in Sydney and the maternal grandmother in Melbourne. The maternal grandmother seeks an order that the child spend time with her one weekend a month from 7.30 pm Friday to 7.30 pm Sunday, for one week in each school holidays, 7.30 pm to 7.30 pm and for two weeks at Christmas time. She seeks fortnightly telephone contact on a Sunday evening at 7.30 and at other times agreed between the parties.  She wants that time to be spent at her Melbourne home and she will agree to pay one half of the identified lowest return airfare for the child and she seeks that the respondent pay the balance. 

3. Orders were made on 15 November 2005 in terms that reflected a document signed by the mother, the respondent signed and a legal representative for the child.  Although they are not expressed to be made by consent I take it that in effect the orders were made by the consent of the parties.  Those orders provided that the child reside with the Respondent, Ms P, that she have sole responsibility for long term decision making in relation to the child but that she use her best endeavours to consult the mother. 

4. They provided for the respondent to do all things reasonably necessary to facilitate contact between the child and her mother and between the child and her siblings, two younger brothers, including by SMS, letter, email and physical time in Sydney, provided the child agrees and physical time in Melbourne, again, provided the child agrees.

5. The mother had a partner called C. The respondent is C’s mother.  Her evidence is that she, the respondent, was in Melbourne in 2002 to care for her other daughter, C's twin sister, who had had a nervous breakdown.  Her evidence is that in about April 2002 her daughter C and the mother arranged for the child to stay with her for a week, ostensibly because they needed a break and the child was behaving in a manner that was too rough or inappropriate for her younger brothers. 

6. Shortly thereafter the respondent says that her daughter C and the mother arranged for the child to stay with her in Melbourne, indefinitely.  In January 2003 the respondent says she formed the intention to come back to Sydney and she says that C and the mother consented to the child moving to Sydney with her. The respondent says that the child was delighted with that arrangement.  She says - and there is some background evidence that supports this - that she found out that her daughter C and the mother, in effect, changed their minds about the arrangement and intended to remove the child from her care in Sydney.

7. There is a letter that gives some support to that.  It is not dated.  It forms exhibit three in these proceedings and it is consistent with what I understand will be the mother's case, to the effect that at least by February 2003 she did not want her daughter to live in Sydney. I understand at some point the mother signed a document, which is available to be put into evidence, about the child coming to live in Sydney with the respondent. In any event, the respondent then started proceedings in the B Local Court. 

8. I think those same proceedings ultimately resulted in a hearing which was conducted in November 2005.  The applicant in these proceedings, the maternal grandmother, was not a party to those proceedings. As I have said, in orders that apparently were agreed between the parties on 15 November 2005, orders were made for the child to live with the respondent in Sydney. 

9. The maternal grandmother’s application is supported by the mother. At the moment her daughter, the mother of the child, has prepared no evidence in these proceedings. That has made things very difficult for the maternal grandmother because she is then put in the position of giving second-hand evidence about what was in the mother's mind. Nevertheless the maternal grandmother understands that the mother will say that in relation to the document in 2003 consenting to the child spending time with the respondent and in relation to the orders made on 15 November 2005, she was forced to agree to those orders, against her will.

10. The problems for dealing with this matter on an interim basis, as I have explained to the maternal grandmother earlier today, arise from the fact that I am not able to make a finding of fact on a disputed issue of fact.  There are inconsistent versions of events and I cannot decide who is telling the truth.  There is no expert evidence available today and so I do not have any independent evidence that assists.  And for that reason I am left with the background facts.

11. The child has substantially lived with the respondent since 2003. She has spent little time with the applicant maternal grandmother and she does not have a well developed recent relationship with the maternal grandmother.  Much of the evidence the maternal grandmother wants to rely on is very critical of the respondent. Unfortunately, that evidence is inconsistent with the orders that the maternal grandmother seeks. For example, if the child is in danger with the respondent, she will not be made safe by spending one weekend a month with the maternal grandmother. 

12. The maternal grandmother says there have been reasons why she did not take action in 2003 or 2004 or 2005 or 2006.  She says she was given inconsistent advice.  The mother said some things today which suggest that she just did not feel capable of taking proceedings. The mother is profoundly deaf and I accept that it is difficult for her to engage in the Court process. 

13. The maternal grandmother says that she has been told she needs to have a relationship with her granddaughter, before she can ask for the final orders she seeks.  The fact is that I am not permitted to make an order about a child to assist somebody make an application about a child.  There seems to be no doubt, that the child says she does not want to spend time with the maternal grandmother.  The maternal grandmother will say that that is not an expression of her independent wish.  She will say that it is possible that the child’s wishes have been overborne by the respondent.  She might even say that this is a child who is not as mature as her age suggests and therefore her wishes should not be taken into account or should not given as much weight as they might otherwise be.  That might be true but for the purposes of today I cannot ignore the express wishes of the child. 

14. An independent child lawyer has been appointed. That representation has not been available today through practical problems of a type that have dogged this matter. The adjournment of the matter today because of the absence of the independent lawyer would have further inconvenienced the parties and it is for that reason that I pressed ahead at the maternal grandmother's insistence. It seems to me that the interim question should be put to bed and the parties can then be encouraged to focus on the final hearing. 

15. I have explained to the maternal grandmother - and no doubt she will reinforce with her daughter - that the hearing will start without any significant written evidence, with the assistance of a written questionnaire that the parties will complete but no affidavits. There will be an opportunity on the first day of the final hearing for the parties to make a statement to the judge.  There will be a mediator present, the independent children's lawyer and there will be an opportunity for the parties to assist the judge in identifying the issues and the evidence that will be needed. That evidence is likely to include the evidence of the mother.

16. But the good news is: the parties are not required to prepare any evidence apart from completing a questionnaire which will be sent to them or provided to them in advance of the day and they will not be required to prepare any affidavits. 

17. It follows from what I have said that I am not in a position to make any significant changes to the orders that were made on 15 November 2005.  Among other things, there is no satisfactory explanation as to why those orders have not resulted in the child spending time with the mother. Why were the orders not enforced? The mother says that she has been to Sydney on at least one occasion on her way through to Queensland and I understand from her mother today that the mother has been to South Australia recently, so I gather it is not a question of the mother not being able to travel.

18. In any event, there will be an explanation of that, if needed, in the final proceedings. In the meantime I dismiss the application in a case filed by the maternal grandmother on 18 December 2006.

19. I should have said: the father is named in the documents but he has taken no part in the earlier proceedings and I gather that he will be taking no part in these proceedings.

20. I request that the registry make arrangements for two ASLAN interpreters to assist the mother on the first date of the less adversarial hearing.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Loughnan JR

Associate: 

Date:  30 April 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as Mortenson & Parker and Anor