Osterton and Sunderland

[2009] FamCA 84

FAMILY COURT OF AUSTRALIA

OSTERTON & SUNDERLAND [2009] FamCA 84

FAMILY LAW – CHILDREN – application by paternal grandfather to be introduced to and spend time with grand-daughter – child’s father deceased – child’s mother opposed – whether old DHS and other files should be subpoenaed – serious allegations against paternal grandfather – most denied by him – relevance of others

Family Law Act 1975 (Cth)

APPLICANT: Mr Osterton

RESPONDENT: Ms M Sunderland

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 5281 of 2007

DATE DELIVERED: 19 January 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 19 January 2009

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Campbell McAuley

INDEPENDENT CHILDREN'S LAWYER Pearsons, Schetzer

Orders

1. That the independent children’s lawyer have leave to file and serve subpoenas to produce documents addressed to :

   (a)Corrections Victoria (Department of Justice, Victoria) in respect of the community based order to which the applicant was sentenced in January, 2008;

   (b)Victoria Police, in respect of criminal charges, investigations and convictions of the applicant since documents were last produced by it pursuant to subpoena;

   (c)Department of Human Services, Victoria, in respect of the following :

   (i)C Osterton (deceased);

   (ii)T Osterton;

   (iii)A Osterton (deceased);

   (iv)P Osterton;

   (v)the subject child;  and

   (vi)J D.

2. That subject to the consent of the legal representative for Mr A Osterton, deceased, the mother have leave to file and serve subpoena to produce documents addressed to Dr. L, treating psychiatrist of the late A Osterton.

3. That the mother have leave to file and serve subpoena to produce documents on the Coroner’s Court, Victoria, in respect of A Osterton, deceased. 

4. That the applicant have leave to issue subpoena addressed to Australia Federal Police and Victoria Police to produce documents relating to :

   (a)A Sunderland born in 1969, formerly known as A Osterton;

   (b)M Sunderland born in September, 1970, formerly known as M …;  and

   (c)LR born in April, 1945, formerly known as L Osterton and …;

   and the scope of the subpoenas issued pursuant to this sub-paragraph be as set out by the applicant in the schedule to the draft subpoena prepared by the applicant and tendered to the court, a copy of which is annexed to this order, marked “A”

5. That any subpoenas issued pursuant to leave granted this day be returnable on 12 February, 2009. 

6. That the applicant attend upon Dr. E for the purpose of the preparation of a psychiatric assessment at a time to be confirmed by the independent children’s lawyer, and the applicant be responsible for the costs of such assessment and report, and the report be released by 31 March, 2009. 

7. That Dr. E be at liberty (but not required) to inspect any material produced pursuant to subpoena and, to facilitate that, the independent children’s lawyer have leave to photocopy such material and provide it to Dr. E if he so requests. 

8. That the respondent have leave to make an oral application to discharge the ex-parte order made on 11 May, 2007 which restrains the removal of the child born … May, 2004 from the Commonwealth of Australia, and subject to any later order, that application be determined on the adjourned date.

9. That the respondent file and serve an affidavit in support of that application by 13 March, 2009 and the applicant file and serve an affidavit in response (unless he consents to the orders sought) by 3 April, 2009. 

10. That all extant applications be otherwise adjourned to 9:30 am. on 7 April, 2009.

11. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of solicitors appearing as counsel.

AND THE COURT NOTES  its present intention to list the competing applications for final orders for trial on 9 July, 2009, subject to part-heard cases.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5281 of 2007

MR OSTERTON

Applicant

And

MS M SUNDERLAND

Respondent

REASONS FOR JUDGMENT

1. I do not propose to detail the background to this matter, save that it concerns a child, who was born in May 2004.  She is the daughter of Ms M Sunderland and Mr A Sunderland.  Her father died in 2007.  The applicant is the child’s paternal grandfather, Mr Osterton. 

2. Mr Osterton has a number of children, to whom reference has been made.  I refer to them only so those references are explicable.  His son C Osterton died in September 2000.  His son T Osterton, who is 17 was, briefly, in court this morning, until advised of the rules precluding his attendance.  I have already referred to Mr A Osterton’s death in 2007.  At some point A Osterton changed his surname from Osterton to Sunderland, to distance himself from his father.  I understand the applicant has a daughter, P Osterton, and also a younger son, JD. 

3. There is an argument between the parties as to the contact, if any, that the paternal grandfather (the applicant) has had with the child to date.  It is not disputed that the child does not know the applicant as her grandfather. 

4. Before the court is a thorough and useful issues assessment prepared by Mr V, a family consultant employed by the court.  It is dated 27 November 2008.  It goes into some detail about the key issues, the child and the parties' understanding of her needs.  Mr. V recommended the applicant undergo a psychiatric assessment to assess his capacity to be a “safe enough” person in the child’s life. 

5. It is clear that the mother's reluctance to have the child spend any time with her paternal grandfather is based on concerns relating to his alleged inappropriate sexual activity, violence, criminal convictions and use of pornography.

6. As Mr V noted, much of the mother’s information about the paternal grandfather comes to her from other members of his family, including the paternal grandmother (the applicant’s former wife), her now deceased husband and other people. 

7. Today, the applicant has told me a little about the criminal convictions recorded against him in January 2008.  The sentencing remarks of the sentencing Judge in the County Court, have been tendered.  It is fair to say that the applicant’s view of the offences for which he was convicted are not the views of the Judge.  From his perspective they are trivial and irrelevant;  from hers, serious and warranting a sentence of imprisonment, albeit suspended. 

8. The principal issue for the court is whether, and if so, how and when, the child should be introduced to her grandfather and, if introduced, what time she should spend with him.  The applicant has accepted, however reluctantly, the recommendation for a psychiatric assessment and an appointment has been made for him to see Dr E on 17 February.  I will direct that he attend a psychiatrist nominated by the independent children's lawyer and be responsible for the costs of that assessment.  The report is to be released by 31 March. 

9. Much of the hearing today has related to documents to be subpoenaed.  The applicant has told me that he wrote to the ICL seeking he issue certain subpoenas, and he has handed to me a schedule specifying the documents sought.  I will give him leave to issue subpoenae addressed to Victoria Police in respect of the three people named in that schedule. 

10. I am satisfied the ICL should have leave to issue a subpoena addressed to Corrections Victoria, in relation to the community-based order to which the father is presently subject, and another subpoena to obtain documents referable to the applicant’s criminal record. 

11. The ICL wants to subpoena a number of DHS files.  Once produced, the parties will have an opportunity to inspect them.  Whether anything in those files is considered by the court to be relevant at the trial will be decided later, if an application is made to call evidence referable to it or tender parts of a file.    

12. I do propose to grant the ICL leave to subpoena the files of the five named children of the applicant, and the subject child.  The surname in the orders will be Osterton for the applicant’s children (save JD) as files are likely to be in that name. 

13. I also propose to grant the mother leave to subpoena the files of Dr L, a psychiatrist consulted by the child’s father.  That will be subject to consent of the legal representative of Mr A Sunderland, deceased.  That is a subpoena to produce documents.  Again, the relevance of those documents can be tested later, if necessary. 

1. The mother will also have leave to issue a subpoena directed to the Coroner's Court, in relation to the file of A Sunderland, deceased. 

2. I do not propose to do anything in relation to Dr W at this time. 

3. Dr E will be granted leave to inspect any material produced pursuant to subpoena and to that end, the ICL will be granted leave to copy documents after release, to provide to Dr E.  That order does not require Dr E to read any material.  If he seeks to do so, he can read it either before or after seeing the applicant.  It is not a direction;  it is an invitation. 

4. All subpoenae will be returnable on 12 February, 2009 at 9:30 am. 

5. The case will be listed for mention before me at 9:30 am. on 7 April, 2009.  I make it clear that is not a hearing at which the substantive matters will be determined.  By that stage, the parties will have had an opportunity to inspect subpoenaed material.  Dr E’s report will be before the court.  At this point I am persuaded by Mr V’s evidence that it would not be useful to order a family report.  I hope that I will be able to list the case for trial on 9 July, subject only to part-heard cases.

I certify that the preceding
18  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2009.

…………………………………………
Associate.