OLLY & NORRINGTON

[2018] FamCA 199

FAMILY COURT OF AUSTRALIA

OLLY & NORRINGTON [2018] FamCA 199

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Where the applicant paternal grandmother sought interim orders for the recovery and return of the child to her care – Where the child was living with the grandmother and was “released” into the respondent father’s care – Where the father has entered into an Intervention with Parental Agreement Plan with the Department of Child Safety, Youth and Women and shall continue to work and cooperate with them – Where the father facilitates a relationship between the child and the child’s mother – Where the child shall live with the father and spend time with the grandmother on a weekly basis – Where the child’s mother has a right to appear and become a party to the proceedings if she wishes – Where it is not appropriate or necessary to make a parental responsibly order.

Family Law Act 1975 (Cth)

APPLICANT: Ms Olly

RESPONDENT: Mr Norrington

FILE NUMBER: BRC 2618 of 2018

DATE DELIVERED: 29 March 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 26 March 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Cafe
Nathan Lawyers

THE RESPONDENT: In Person

Orders

IT IS ORDERED UNTIL FURTHER ORDER

1. That the child, B born … 2015, (“the child”) shall live with the Respondent Father, Mr Norrington.

2. That the Respondent Father shall continue to work with the officers of the Queensland Department of Child Safety, Youth and Women via their Intervention with Parental Agreement for as long as the Departmental officers consider it is appropriate and he shall continue to co-operate with the Departmental officers including complying with their requests for urinary drug testing and regular home visits.

3. That the Applicant Paternal Grandmother’s application for interim orders is adjourned for further hearing in the Judicial Duty List before his Honour Justice Forrest commencing at 10.00 am on Monday, 14 May 2018.

4. That by close of business on Friday, 27 April 2018, the Respondent Father shall file and serve a Notice of Address for Service, a Response to the Applicant Paternal Grandmother’s Application, including a response to her application for interim orders, and an affidavit of evidence he relies upon in seeking the orders that he seeks.

5. That the Applicant Paternal Grandmother shall use her best endeavours to cause her Application and supporting Affidavit and a copy of these Orders to be served on the mother of the said child.

6. That the Respondent Father shall bring the proceedings and the Applicant Paternal Grandmother’s Application to the attention of the child’s mother and inform her that she has a right to appear and be heard as a party to these proceedings, including on Monday, 14 May 2018.

7. That the parties shall participate, whether through the auspices of the Legal Aid Office of Queensland or a Family Relationships Centre, in family dispute resolution counselling or mediation prior to the further hearing of this matter on Monday, 14 May 2018.

8. That commencing on Sunday, 8 April 2018, the child shall spend time with the Applicant Paternal Grandmother from 9.30 am to midday each Sunday with the Respondent father or his nominated person to deliver the child into the Applicant Paternal Grandmother’s care in Suburb C in Brisbane at the commencement of such time and with the Applicant Paternal Grandmother to deliver the child back into the care of the Respondent Father or his nominated person at the conclusion of such time.

9. That the Applicant Paternal Grandmother shall notify the Respondent Father by no later than 5.00 pm each Saturday if she is not going to be able to spend time with the child the next morning as provided for in paragraph (8) hereof.

10. That the Applicant Paternal Grandmother shall not consume or be under the influence of alcohol during the time the child is in her care pursuant to paragraph (8) of these Orders.

11. That should the Respondent Father not make the child available to spend time with the Applicant Paternal Grandmother pursuant to paragraph (8) of these Orders on any occasion because he asserts that the child is too unwell or sick to attend or that he, the Father, is too unwell or sick to take the child, then he shall produce a suitable medical certificate or certificates from a doctor to the Applicant Paternal Grandmother’s solicitor and to this Court at the hearing on Monday, 14 May 2018.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2618 of 2018

Ms Olly

Applicant

And

Mr Norrington

Respondent

REASONS FOR JUDGMENT

1. On 12 March 2018, the applicant in this matter filed an Initiating Application in this Court seeking interim and final parenting orders in respect of her grandson, B, born in 2015. B is the son of Mr Norrington who is a son of the applicant paternal grandmother. He is also the son of Ms D. B’s parents are not a couple.

2. The grandmother sought interim orders for the recovery and return of B to her care.

3. The matter came before me on Monday, 26 March 2018 in a Judicial Duty List.

4. The grandmother said in her affidavit that the three year old child had been living with her for the past two to two and a half years and that during that time, her son, the father, had little contact with B. She also said that the child’s mother had chosen to be absent from the child’s life and is not contactable or refuses to respond to attempts to contact her.

5. The grandmother said that her son has a history of drug dependency, particularly with the drug known as “ice”. She said he supplies and uses drugs. She said he is violent and intimidating when under the influence of drugs.  She said that the father dropped the child at her home and left him in her care in 2016 and that he has been in her care since then. She said that she has ensured the child has his vaccinations up to date, is registered with Medicare, socialises with other young children and has had his needs met.

6. The grandmother said that the father has slapped the child on the face in June 2016 and left a red hand print mark on his face. She said that the father has left the child alone as a baby in a caravan one night and gone to a hotel drinking.

7. The grandmother said that on 22 January this year she flew to north Queensland to support her teenage daughter on her first day of boarding school. She had left the child in the care of a family day care provider in her local area. She said that attempts had been made to secure funding from the Department of Child Safety, Youth and Women (“the Department”) for the child to be able to stay with the family day care provider whilst the applicant was away for a few days but it had not been able to be obtained.

8. The grandmother said in her affidavit that on 23 January, the child was “released” into the father’s care by the officers of the Department and he has been in the father’s care ever since. She said that she has not seen the child since and the father will not respond to her attempts to contact him. She does not know where the father and the child live.

9. Apparently concerned for the child’s wellbeing, the grandmother brought this application.

10. At the hearing, the grandmother was represented by a solicitor. The father appeared without representation and without having filed any documents in the proceedings. He told the Court that he had only learned of the proceedings on the Friday, three days before the hearing. He told the Court that he had not even seen the grandmother’s Application and supporting affidavit.

11. An officer from the Court Services branch of the Department also appeared at the hearing on Monday, as a friend of the Court.

12. He told the Court that the family day care provider had contacted the Department and told officers that the child had been left in her care by the grandmother who had travelled to north Queensland and that the family day care provider told the Department that she could not continue to care for the child. He told the Court that the Department had assessed the father and determined to put the child into his care and not back into the grandmother’s care.

13. He told the Court that the father had entered into an Intervention with Parental Agreement plan (“IPA”) with the Department. This is a voluntary programme of Departmental assistance and oversight provided to a family or a parent considered to be in need of some assistance and oversight. The Departmental Officer told the Court that Departmental officers were visiting the father at his home once per week as part of the IPA and were currently satisfied that he was providing a safe environment for the care of the child and was providing adequate care for the child.

14. The Departmental officer told the Court that the Department had some concerns about the grandmother’s dependency on alcohol and did not currently support a return of the child to her care.

15. The father told the Court that he and his mother did not have a good relationship and that his mother had simply withheld the child from him for the eighteen months up to January this year without permitting him to spend time with the child. He said that his mother had also prevented the child’s mother from having a relationship with the child. He said that the child’s mother lives in Melbourne and that he facilitates a video call between the child and the child’s mother each day and that he will continue to facilitate that relationship. He asserted that the mother of the child would support the continuation of his caring for the child.

16. The father told the Court that he was clean of drugs and had not used any since the child came into his care. He volunteered that he is doing urinary drug screens for the Department on a weekly basis and co-operating with Departmental officers through the IPA Program.

17. The father asked for the matter to be adjourned so that he could try to obtain legal representation. He opposed any suggestion of the child spending time with the grandmother, principally on the basis of expressed fear that she would abscond with him or not return him to his care, but also he did express concerns about the level of care she provides. He was even reluctant to agree to any supervised time between the child and the grandmother.

The Outcome

1. I determined to leave the child in the care of the father for the time being at least, principally in reliance on the submissions from the Departmental Officer and the expectation that the Department will continue to work with the father, monitoring the child’s circumstances. I am satisfied that the Department will act if it is considered necessary. I also accept, at this preliminary stage, the Departments’ representations about concerns about the grandmother and the care she would provide for the child if he was returned to her care.

2. The child has been with the father now for two months. It is, I consider, appropriate to leave him in the father’s care at the moment with an order that the father continue to work with Departmental officers through the IPA that is in place. I expect if he breaches that, the Department would act accordingly in the best interests of the child.

3. I will adjourn the matter for several weeks to allow the father to attempt to get legal representation. He said he may need to get legal aid. The grandmother is already in receipt of legal aid. The Legal Aid Office of Queensland may be able to convene a family dispute resolution conference or mediation with a view to getting resolution of this dispute in the meantime. I will order the father and the grandmother participate in such a process before the matter returns to this Court in mid-May.

4. I do not consider it appropriate or necessary to make a parental responsibility order. The father already has parental responsibility for the child.

5. I also consider it appropriate for the mother of the child to be served with the proceedings and notified of the adjournment to Monday 14 May, 2018. She, as the child’s mother, has a right to appear and to become a party to the proceedings if she wishes. Her views on what parenting orders should be made should be heard by the Court.

6. Finally, although the father opposed orders being made that provided for the child to spend time with his grandmother, I consider that it would be in the best interests of this little boy right at the moment for him to be able to see and spend a little time with her. He lived with her and was cared for by her for at least eighteen months of his short life, accepting the father’s case or for two years or more, accepting the applicant’s case. Either way, he is most likely to have developed an attachment to his grandmother in that time and I am satisfied that having that attachment disrupted in late January would have caused him a lot of emotional turmoil, if not trauma.

7. As I told the father at the hearing, just because the child has not asked for his grandmother (as the father tells the Court) does not mean he would not be suffering emotionally because of her absence from his life after having lived with her for so long.

8. Although the Departmental officer expressed Departmental concerns for the grandmother’s alcohol dependence, I will not order the time the child spends with her in the next few weeks to be supervised. I consider two and a half hours once per week in her care at Suburb C or its surrounds, where she can relax and play with him, simply walk or swim with him or take him to a café for a drink and a talk will be in his interests, presenting him with the opportunity to know that she is still around and still loves him. I consider Sunday mornings to be appropriate. Handovers at the start and finish of such visits can take place at Suburb C. That is a central, easily identifiable public location and easy to find.

9. I will expressly order the grandmother to refrain from alcohol use during such visits and from being under the influence of alcohol during such visits. That means that she should refrain from drinking on Saturdays before she spends time with the child on Sunday mornings, as well.

10. Should the grandmother not be able to make the Sunday mornings, she should notify the father by 5:00 pm on the day before. 

11. The father said at the hearing that he was reluctant to take the child out on “overcast” days, lest he fall ill, as he does fairly easily, according to the father.  I was a little concerned that suggested the father was looking for easy excuses not to permit the child to spend time with the grandmother. Accordingly, I will order that the father will need to obtain and provide to the grandmother and the Court, suitable medical certificates if he keeps the child from any visit because he says the boy is unwell or that he himself is unwell and cannot get the boy to Suburb C.

12. Whatever the father thinks of his mother, I am satisfied, at this point in time, that it is in the boy’s best interests to be seeing and spending a little time with his grandmother in an enjoyable, public location. I will order that and I expect the father to comply with such order.

13. I make the orders set out at the commencement of these reasons.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 29 March 2018.

Associate: 

Date:  29 March 2018