Oaks and Shields and Anor

[2016] FamCA 28

FAMILY COURT OF AUSTRALIA

OAKS & SHIELDS AND ANOR [2016] FamCA 28

FAMILY LAW – CHILDREN – Best interests – Interim – Where the father seeks orders that the children live with him until arrangements can be made to restore the children primarily to the mother – Where the mother supports the father as to the terms of the orders he seeks – Where the maternal grandmother seeks orders that the children live with her until arrangements can be made to restore the children primarily to the mother – Where the mother recently attempted to kill herself while she had care of the children – Where an AVO has been issued against the mother for protection of the children – Orders made for the appointment of an Independent Children’s Lawyer – Orders made that until further order the children live with the maternal grandmother and spend time with the father each weekend and for half of the school holidays.

Family Law Act 1975 (Cth)

APPLICANT FATHER: Mr Oaks

RESPONDENT MOTHER: Ms Shields

SECOND RESPONDENT –

MATERNAL GRANDMOTHER:

Ms Price

FILE NUMBER: SYC 8459 of 2015

DATE DELIVERED: 12 January 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 12 January 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Eldershaw

SOLICITOR FOR THE APPLICANT: Barkus Doolan

RESPONDENT MOTHER IN PERSON: Ms Shields

SECOND RESPONDENT – MATERNAL GRANDMOTHER IN PERSON: Mrs Porter

Orders

1. The proceedings are adjourned to 10.00 am on 15 March 2016.

1. B born … 2007, C born … 2011 and D born … 2012 be represented and it is requested that Legal Aid NSW make arrangements for that representation as soon as practicable.

1. The parties provide copies to Legal Aid NSW of any relevant application, affidavit or other document on which they seek to rely on as soon as practicable and provide any such document to be filed in the future to Legal Aid NSW.

1. The parties facilitate the attendance of the children or any of them on the children’s lawyer at times, dates and places requested by the Independent Children’s Lawyer.

1. Until further order of the Court any subpoenas to issue in these proceedings be issued at the application of the Independent Children’s Lawyer, but leave is granted to the parties to bring the matter back before the Court in the event that there is a dispute about the issue of subpoenas.

1. Until further order of the Court the children reside with the maternal grandmother.

1. Until further order of the Court the children spend time with their father in accordance with paragraph 2 of Exhibit 2, as amended, as set out hereunder:

2.     That the children spend time with their father as follows:

2.1from 9 am Friday 15 January to 5 pm 20 January 2016.

2.2during the school term from 6 pm Friday each week to 5 pm Sunday (or 5 pm Monday if a non school day).

2.3on the children’s birthday from 5 pm the day before to 5 pm on the child’s birthday.

2.4for one half of school holiday periods, from after school on the last day to 5 pm on the mid point of the holiday.

2.5such other times as agreed.

1. Until further order of the Court effect be given to those orders by the father or his nominee collecting the children from the home of the maternal grandmother at the commencement of each occasion and returning the children to the maternal grandmother at that address at the conclusion of each occasion.

1. The Court notes that there may be an agreement for occasions when the maternal grandmother collects the children from the father’s home or the home of the paternal grandparents.

1. The Court notes that it is the intention of the father that overnight occasions with the children in accordance with these Orders be exercised at the home of the paternal grandparents.

1. Until further order of the Court the children, B and C attend at the E School unless the parties agree to the contrary.

1. By consent, the maternal grandmother be restrained from causing the children or any of them to attend upon any counsellor without the written consent of the parents.

1. Leave is granted to any party to provide copies of documents filed in these proceedings to Ms F of G Group.

1. The Court notes that it was the application of the father and the mother and will continue to be their application that the children should live mainly with the father and that they have not agreed to the order in relation to residence today, however it is noted that given that the children will live with the maternal grandmother the arrangements with the father, save for the change from 25 to 20 January 2016, are in accordance with an agreement reached between the parties.

1. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), 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.

1. By consent, orders and notations are made in accordance with the document titled “Agreement” (Exhibit 3 dated 12 January 2016), as set out hereunder:

That the mother, father, paternal grandparents and maternal grandparents attend upon Ms F of G Group on 21 January 2016 as required by Ms F (which may include on 22 January 2016), and if Ms F requires it, for the abovenamed to cause the children to also attend.

That the parties instruct Ms F to prepare a preliminary report relating to any issue raised in the proceedings and make such recommendations that are in the children’s best interests and that memorandum be provided to the Court on request of any party.

The Court notes that the paternal grandfather will meet Ms F’s costs up to $1,000.

1. Leave is granted to the parties to restore the proceedings to the list on giving seven days’ notice to the Court and the other party.

1. A copy of all documents filed in the Court from today are to be sent to the father of B, Mr H, I Street, Suburb J, NSW.

1. The Court notes that the Registry will forward to Mr H copies of all relevant documents filed to date.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Oaks & Shields 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 SYDNEY

FILE NUMBER:  SY 8459 of 2015

Mr Oaks

Applicant Father

And

Ms Shields

Respondent Mother

And

Ms Price

Second Respondent – Maternal Grandmother

REASONS FOR JUDGMENT

1. These are proceedings in relation to three children:  B, born in 2007, C, born in 2011 and D, born in 2012.  They are eight, four and three years of age, respectively. 

2. The mother and father are 36 years of age.  They started a relationship in 2010, commenced cohabitation in July of 2011 and separated in late 2012. 

3. The background facts are not all agreed.  The mother was the primary caregiver of the children and the father had time with the children under a fairly relaxed arrangement.  He lives in Sydney’s north and the mother lives on the Central Coast. 

4. The father relocated in late 2013 from the Central Coast to Sydney, and the parents say that the children lived with the mother and had alternate weekends or every third weekend with the father.  There had been an agreement between the parents that the children would be with the father from the day before Christmas Eve until 30 December 2015. 

5. The mother called the father on 11 December 2015, asking that he immediately collect the children.  Before the father collected the children the police were involved, the mother was hospitalised and the children were placed with the maternal grandmother.  An AVO issued against the mother for the protection of the children.  The mother had expressed some concerns about the children being brainwashed, in effect, by her mother.  The father saw some solicitors on 17 December and then wrote to the maternal grandmother.  Immediately before Christmas the father commenced these proceedings.   

6. The mother was living in a home that she rented from her mother.  There is a dispute about what happened late last year.  I understand the mother’s view of it was that she was given a notice to vacate for reasons associated with the maternal grandmother’s attitude to her current partner.  The maternal grandmother says that she intends to sell the property, and that was the reason why the vacant possession was needed. 

7. It is common ground that the mother tried to kill herself on 10 December 2015.  The police records show that the mother’s neighbours saw the mother attaching a hose to a motor vehicle, taping the hose up, getting into the car and starting the motor.  A neighbour intervened and removed the hose from the vehicle’s exhaust pipe and took the ignition keys.  The police were told that the neighbour heard the mother say that as soon as they released her from hospital, “I’m going to do it again.”  The police notes record that the mother was screaming, “I just want to die.  I want to see my boyfriend.” 

8. Ultimately, as I say, the police removed the mother.  She was conveyed to a mental health unit and scheduled under the Mental Health Act.  Ultimately she had to be sedated.  The police recorded that they held grave fears for the mother’s capacity to care for the children, particularly because she had care of the children when she tried to kill herself.  An AVO was granted on 15 December 2015 which prevents the mother being within 100 metres of the premises occupied by the children from time to time, and she is not allowed to approach them or contact them and she is not allowed to approach a school or any premises where they may be from time to time.

9. There is a dispute now between the father, who is supported by the mother as to the terms of the orders he seeks, and the maternal grandmother.  The father and the mother would like the children placed with the father and to live with him.  He lives, as I say, in Sydney’s north, and he has a proposal which would involve the children attending school there and being with him, in the medium term, until arrangements could be made to restore the children to the mother. 

10. In a way, the maternal grandmother has the same sort of proposal.  She says while the children cannot live with the mother they should live with her, and then her plan would be that, once the mother is well, the children would return to live with her.  The AVO is in place for 12 months, so that is the term of her application.  She opposes the children going to live with the father in the medium term. 

11. Courts have to be careful about making orders in relation to children.  Parents can make arrangements for their children to live, for example, with a relative in a caravan and they do not have to justify it or explain it or satisfy themselves that the relative owns a caravan or that it would be safe and so on.  The Court is not free to take that sort of action.  The practice has developed in this jurisdiction whereby unless it is desperately urgent, orders are not made about children until after the responsible adults have had counselling and where the children need to be represented, after there has been an effective appointment of a legal representative for the children.  That means an Independent Children’s Lawyer speaking to the children, if needed, issuing any necessary subpoenas and being otherwise in a position to make submissions about what should happen. 

12. That practice has served us well.  Of course, even with those precautions, courts make mistakes and make orders that are not suitable.

13. The parties have attended today.  The maternal grandmother appears without legal representation but with her husband.  The mother is here without legal representation and the father is here represented as the applicant.  The parties have not had counselling and the children are not represented.  I gave the parties some time to try and reach agreement about some issue and they were not able to. 

14. That means there is no choice but for the Court to make a decision.  It is not a case of simply granting the father’s application.  The arrangement between the parents did not have the children living mainly with him.  That was probably for good reason.  Their primary attachment is probably to their mother.  It is not a case of simply reverting to the next available parent.

15. Although there are special provisions in the Family Law Act 1975 (Cth) about parents, there is no provision that says children must live with their parents and only if there is no parent available do they live with somebody else. Any person with an interest in the welfare of a child can be an applicant in proceedings, and a child can live with that person, and that person can be provided with parental responsibility. The counselling appointment will be at the beginning of March. In a perfect world, with better resources for family law, that would be earlier.

16. Enquiries have been made by the father’s solicitor with an agency called G Group, which is a private psychological and social work agency.  A practitioner there, Ms F, is available to see the parties on 21 February 2016. 

17. The parties have agreed to attend on Ms F, and they have asked that her role be a forensic role, by that I mean she is not to be a privileged counsellor for the parties, but she is to be somebody who will give them advice about the best arrangements for the children, including advice about what each of them might do individually about therapeutic interventions.  She will not be a treating practitioner for them, but she might be able to then provide a summary of her recommendations or, ultimately, a report to the court when she is qualified herself to do that. 

18. There is no dispute that it would be useful for the children to be represented.  That takes a bit of time.  That is done, in practical terms, by an order being made that they be represented and requesting the Legal Aid Commission to make arrangements for that to happen. 

19. The controversial issue is as to where the children live in the meantime.  There is a bit of controversy in relation to what time they spend with their father, if they are to continue to live with the maternal grandmother.  There is no controversy at the moment in relation to the mother, because there is an order of a State court that prevents the mother having contact with the children.  This court has power to make an order inconsistent with an AVO, but one would only do that on the basis of appropriate evidence.  It might be that the State order will be changed long before that can happen.  This Court would be looking for some evidence that explains what happened in December, evidence going to the mother’s treatment and evidence that provides confidence that the children will be safe with her. 

20. There is a related issue, if the children are to remain with the maternal grandparents, as to whether they attend the E School or they go back to the Suburb L Public School.  So, dealing with those matters, for the reasons that I think appear from the discussion between the bench and bar table, I cannot simply grant the father’s application today.  It might be that that would be a sensible order in the medium term. 

21. The current circumstances were not conspired at by the maternal grandmother.  She has stepped up as loving grandparents do and taken responsibility for her grandchildren, but she is not seeking that they live with her indefinitely.  She probably wants to get on with being a grandmother.  She has stepped in, and that is a wonderful thing, but in the medium and long term, I understand that she is hoping that her daughter will be able to resume primary care of the children.  Something will happen, I would imagine, to restore significant time for the mother when evidence is available that she is taking care of the things that she needs to take care of, and in the meantime, and until further order, it is sensible that the children remain with their grandmother.

22. There is a broad agreement about the time the children spend with the father.  The only dispute is whether it is between 15 January and 25 January or between 15 January and 20 January.  That is a non-justiciable issue.  In other words, there is not likely to be any matter of principle or law that assists with that answer.  Courts dealing with matters on an interim basis and without being able to test the evidence, take a conservative approach.  Ending the time on 20 January would be a conservative approach, and that is what I will order. 

23. There is a dispute between the parties as to who should do the delivering and pick up.

24. The father proposes that he do the collection on each occasion.  That is likely to be through the good offices of his father, but that is his proposal.  He wants the maternal grandmother to collect the children from Suburb M at the end of his times with the children.  The grandmother does not drive.  She is able to rely on her husband to drive her on some occasions.  Courts should not make an order that cannot be enforced, and I cannot enforce an order against somebody who is not a party to the proceedings.  Therefore I will not make an order requiring the maternal grandmother to collect the children from Suburb M.  Like any sensible person, she is terrified by the busyness of Suburb M, but that is a different problem.  The maternal grandmother says that there will be occasions when she can arrange to collect the children, but apart from noting that, I cannot order it.  Therefore the father will be doing the delivery and collection but with a bit of goodwill, there may be some assistance on some occasions. 

25. The next issue is the school to be attended by the older children.  On either of the proposals, the older child would be going to a new school.  The father’s case is a bit schizophrenic.  Under his proposal, he will change the children’s school to one in Sydney’s north, but under the maternal grandmother’s proposal he wants them to remain at the existing school or the school formerly attended by the older child.

26. The maternal grandmother says it is not practicable for her to take the children to the old school.  C is going to school for the first time, and I am not going to require him to undertake two hours or more of travel each day.  Something extraordinary happened here.  The mother was the primary caregiver.  There were no proceedings on foot seeking to change that situation.  The mother’s care of the children was interrupted because the mother became unwell.  It is likely that the arrangement with the mother will be restored but in the meantime, unfortunately, there will be some disruption to the children’s lives.  That is going to include B having a new school on either proposal.

27. It is likely that C will start school and will later need to change schools.  Those things happen.  For the time being, he will attend at E School. 

28. There is a complication in the proceedings.  The applicant is not the father of B.  It is agreed that Mr H is the father of B.  He is a necessary party under the rules of the court, because he is a parent.  His address, as far as we know, is I Street, Suburb J in the State of New South Wales.

29. I will make an order that the parties serve their documents on him in future.  I cannot force him to take part in the proceedings, but if he has notice, then he has the opportunity to take part.  He does not lose his right to be involved in his child’s life because he has not been involved earlier.  If he wants to be heard, he must be heard in relation to B.

30. There is the costs associated with the services of Ms F.  The document titled Agreement is exhibit 3, and by consent, I make orders and notations in accordance with that agreement. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 12 January 2016.

Associate: 

Date:  29 January2016