Osterton & Osterton

[2008] FamCA 354

FAMILY COURT OF AUSTRALIA

OSTERTON & SUNDERLAND [2008] FamCA 354

FAMILY LAW – PRIORITY HEARING – Application refused

Family Law Act 1975 (Cth)

APPLICANT: MR OSTERTON (SNR)

RESPONDENT: MS SUNDERLAND

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 5281 of 2007

DATE DELIVERED: 21 MAY 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: BY WAY OF WRITTEN SUBMISSIONS

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: BY WAY OF WRITTEN SUBMISSIONS

SUBMISSIONS RECEIVED FROM:

THE APPLICANT: IN PERSON

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the application for an expedited hearing is refused.

2. That the application be placed in the list of cases awaiting a final hearing before a judge on a date to be fixed.

3. That there be liberty to apply if the circumstances otherwise change.

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: MLC5281 OF 2007

MR OSTERTON (SNR)

Applicant

And

MS SUNDERLAND

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is an application for an expedited final hearing of proceedings.  Pursuant to orders, it has been dealt with in chambers on the papers filed specifically relating to the application.

2. The substantive proceeding is about parenting orders.

3. The proceedings began with an application by the paternal grandfather filed on 11 May 2007 to spend time with his granddaughter born in May 2004.  The child is therefore almost five years of age.

4. The child’s father died in 2007. 

5. The respondent mother of the child filed material on 4 July 2007.

6. On 11 May 2007, Senior Registrar FitzGibbon restrained the mother from removing the child from the jurisdiction.

7. On 19 July 2007, Senior Registrar FitzGibbon refused to make an interim order sought by the paternal grandfather that he spend some time with the child at a contact centre. 

8. The reasons of the Senior Registrar make the position very clear.  He said that even allowing for the applicant’s appalling criminal history, the grandfather wished to see and spend time with his granddaughter

   whom he had met intermittently and it seems briefly, when according to him his late son called in to his home.

9. It was also the view of the Senior Registrar that the mother of the child did not know about that but she went on to indicate that it was her understanding that her late husband did not want to have and hence would oppose any relationship with the grandfather. The Senior Registrar noted that as a consequence, the same logic applied in respect of the child. 

10. The Independent Children’s Lawyer submitted that there should not be any orders made and the Senior Registrar described the Independent Children’s Lawyer’s view as one of “grave alarm” having regard to the grandfather’s criminal history which includes a conviction for child pornography.  Needless to say, Senior Registrar FitzGibbon declined to make any order.

11. As a consequence, an application by the paternal grandfather has been made to expedite the hearing.

12. In support of that application, the grandfather says that he has now been dealt with for his crimes by her Honour Judge Hampel in the County Court of Victoria.  He enclosed with his handwritten submission an excerpt of her Honour’s sentencing judgment.  The hearing went for ten days throughout late 2006 and 2007 and the sentencing occurred in January 2008. 

13. The grandfather pointed out that her Honour felt that he was highly unlikely to commit further offences, was a good, caring and responsible father, had a significantly reduced life expectancy and was at a risk of injury with loss of balance, eye sight problems, obesity and pre-diabetes.  Her Honour suspended any sentence that she intended to impose. 

14. On 13 May 2008, the practitioner for the mother provided submissions objecting to the application by the grandfather for an expedited hearing.  I have presumed that a copy of that submission has been sent to the grandfather.  Even if it has not, it would not necessarily affect the decision I propose to make.

15. The submission on behalf of the respondent indicated that there was no urgency as the grandfather did not have “contact” with the child whilst the child’s father was alive.

16. The solicitor went on to indicate that the extract of the judgment of Judge Hampel was limited and accordingly, provided the full copy of the judgment.  I shall turn to that below.

17. The submission also said that there were two other matters listed for mention in May 2008 relating to the restoration of a suspended sentence. 

18. The judgment of her Honour Judge Hampel makes illuminating reading.  The grandfather provided me with one paragraph in particular indicating her Honour’s view about his personality and the evidence which suggested that he was a good, caring and responsible father towards his son and that that needed to be acknowledged.  I was not privy to all of the plea material put before her Honour but having regard to the other matters which her Honour canvassed, that statement seems to be rather broad.  According to the judgment, the grandfather gave sworn evidence in a hearing in the Magistrates Court at Melbourne in December 2002 as a result of which he was charged with and found guilty of perjury.  The excerpt of what gave rise to that charge indicates that her Honour took the view that the grandfather had little trouble about telling lies.  As her Honour said:

    You were not reluctantly before the court in proceedings not of your own making where perhaps more understandably, although not excusably, a person might be more likely to lie when defending himself against an allegation or attempting to exonerate himself or to minimise his role or seek to reduce the penalty otherwise applicable.  Here you were the applicant and seeking an order in your favour.

19. The very next part of her Honour’s sentencing goes on to say that there is a very high duty on those who seek out the processes of the courts to tell the truth. Whilst the evidence that the grandfather has provided to me in his handwritten submission is limited, there is substantially more to the background of this case that was not before this Court.

20. In addition to the charge of perjury, the grandfather was also charged with the offence of subornation of perjury.

21. There were other offences as well.

22. Importantly, on a significant number of counts before the court, her Honour imposed a sentence of imprisonment at a total effective sentence of three years and suspended all of that which had not been served to that point in time.  In other words, the grandfather has had his sentence suspended for three years if I understand what her Honour was doing correctly.

23. In addition to the charges of imprisonment, there was a summary charge.  Her Honour placed the grandfather on a community based order with two significant conditions.  The first was that he be supervised.  The second was that he be assessed for and receive such psychiatric or psychological treatment as directed by the Regional Manager of Corrections and the transcript noted that the grandfather consented to that order being made.

24. In summary form therefore, the grandfather has not only a significant history of criminal activity but has not told the Court the full story.  His written submission tends to suggest that her Honour took a good view of him in relation to his parenting capacity and that may very well have been so.  However that is where that issue stops.

25. On what I have read, the application by the grandfather is simply one in which he desires to form a relationship with his granddaughter.  It would appear there is no relationship at the moment.

26. The grandfather’s argument is that his life expectancy is such that if the case waits in the list much longer, he may not have an opportunity to litigate.

27. There is nothing in the application in relation to what it is suggested would be in the interests of the child to have an order made.  It may very well be that there are some factual reasons as well as the obvious inference that a relationship with an extended family member such as a grandfather is generally seen as being in the bests interests of a child.  However, the criminal history is concerning.  The grandfather’s health would also suggest that he may not be in a position to have any active participation in the life of this child.  It is hard to see how there can be any other basis than the prospect that the grandfather may not live to see the hearing, as a ground for expedition.

28. It is the policy of the Court to try and hear every matter expeditiously but an application such as this endeavours to have the hearing placed ahead of other cases.  The case management directions require the applicant to satisfy the Court that there are special reasons why that elevation should be given.  “Special reasons” means what it says namely something unusual or out of the ordinary.

29. In this case, I am satisfied that there is nothing more urgent than usual nor that there is anything unusual about the case to warrant expedition.  Accordingly, the application is refused.  I propose to also make an order that the case await a listing for final hearing before a judge.  As usual the parties have liberty to apply should the circumstances change.

I certify that the preceding Twenty Nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:   21 May 2008