Pavy & Bateman & Ors
[2010] FMCAfam 1316
•23 November 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PAVY & BATEMAN & ORS | [2010] FMCAfam 1316 |
| FAMILY LAW – Urgent parenting application – mother deceased – biological or psychological father – maternal grandmother. |
| Family Law Act 1975, Part VII |
| Goode & Goode (2006) 93-286 |
| Applicant: | MS PAVY |
| First Respondent: | MS BATEMAN |
| Second Respondent: | MR GLOVER |
| Third Respondent: | MR ROWAN |
| File Number: | SYC 786 of 2010 |
| Judgment of: | Altobelli FM |
| Hearing date: | 23 November 2010 |
| Date of Last Submission: | 23 November 2010 |
| Delivered at: | Sydney |
| Delivered on: | 23 November 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Legal Aid NSW |
| Second Respondent: | Self-represented |
| Solicitors for the Third Respondent: | Michelle Porcheron Lawyers |
| Independent Children’s Lawyer: | Slade Manwaring Solicitors |
THE COURT ORDERS PENDING FURTHER ORDER THAT:
The Maternal Grandmother to have sole parental responsibility for the Child [X] born [in] 2010.
The Child live with the Maternal Grandmother MS PAVY.
The Child spend time with the Third Respondent MR ROWAN as agreed between the Maternal Grandmother and the Third Respondent or as otherwise facilitated by the Independent Children’s Lawyer.
Pursuant to s67Q of the Family Law Act 1975 a recovery order issue directed to the Marshal of the Federal Magistrates Court, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia requiring them to find and recover the Child [X] born [in] 2010 and to deliver the said Child to the Applicant Maternal Grandmother and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said Child may be found.
Order 4 above is stayed pending compliance with the following order:
(a)That MR ROWAN is to deliver the Child [X] born [in] 2010 to the Maternal Grandmother MS PAVY at 9:00am QLD time on Monday 29 November 2010 at [omitted] Airport.
THE COURT FURTHER ORDERS THAT:
Compliance with any rule that prevents the Third Respondent from making an application to stay these Orders is dispensed with.
The Application by the Third Respondent for a stay of these Orders is dismissed.
Leave be granted to all parties to inspect documents produced in answer to subpoena by the Department of Child Safety.
Leave be granted to the Independent Children’s Lawyer to photocopy documents produced in answer to subpoena by the Department of Child Safety. Such leave is granted on the condition that the copying party returns all photocopies to the court at the conclusion of the matter for destruction. Documents produced by the Department of Community Services are protected by s.22(8)(d) and (e) of the Child (Care and Protection) Act 1987. Documents in sealed envelopes may not be inspected.
The proceedings are transferred to the Family Court of Australia to be listed for directions before a Registrar on 13 December 2010 at 9:30am.
Leave be granted to the Second Respondent and the solicitor for the Third Respondent to attend this by telephone.
IT IS NOTED that publication of this judgment under the pseudonym Pavy & Bateman & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 786 of 2010
| MS PAVY |
Applicant
And
| MS BATEMAN |
First Respondent
| MR GLOVER |
Second Respondent
| MR ROWAN |
Third Respondent
REASONS FOR JUDGMENT
Ex tempore
I provide the following ex tempore reasons in the matter of Pavy & Rowan & Glover. This application relates to a very young child, [X], born [in] 2010. [X] is also known as [X], or [X]. He is nine months old. He currently lives with Mr Rowan who is either his biological father or for all practical purposes his psychological father. Whilst the issue of his parentage has not yet been established, I don’t think it makes any difference in the context of the present proceedings, because as I have indicated, Mr Rowan is either the biological father or the psychological father. If he is not the biological father then of course notice needs to be given to the person who is found to be his biological father.
[X] has two siblings, [Y] who is 10, and [Z] who is 9. Pursuant to orders that I have made in these proceedings, they live with the applicant who is the grandmother.
The mother of the children, Ms Bateman, died on [date omitted] 2010. Prior to her death she had been in prison and in fact [X] was born during a period, I believe, when the mother was in prison and spent the first eight months of his life there. After his mother died, Mr Rowan took over the responsibility for caring for [X] and he has been in his care since then.
I have made a number of previous orders in relation to [Y] and [Z].
Before me today the applicant grandmother in whose care, [Y] and [Z] are, seeks an order that [X] lives with her and with his siblings. This proposal is supported, in effect, by the Independent Children’s Lawyer and by Mr Glover. Mr Rowan, however, proposes that [X] continue to live with him. Accordingly, the issue that I need to decide is where, pending further order, [X] will live and what contact there should be as between him and the other significant people in his life.
There is, perhaps atypically for interim proceedings, quite a significant amount of evidence before the Court mainly because of the proceedings in relation to [Y] and [Z]. The grandmother has filed affidavits. Mr Rowan has filed affidavits, including affidavits from supporting persons. There is an abundance of subpoenaed material that relates to Mr Rowan and [X]’s late mother.
In addition, and very helpfully, there is a very comprehensive report of Dr L, the part 15 expert appointed to deal with the proceedings relating to [Y] and [Z]. His report is dated 2 September 2010 and was of course completed before the death of the mother in these proceedings. It is of significance that he interviewed Mr Rowan and was certainly aware of [X] at the time that the report was prepared.
In terms of the applicable law, these proceedings are of course governed by Part VII of the Family Law Act, and the Full Court’s decision in Goode & Goode (2006) 93-286 provides a framework for deciding these cases and the approach to be adopted. I incorporate into these ex tempore reasons a number of paragraphs from the Full Court’s judgment, including paragraphs 82, 68 and 72.
When one has regard to section 60CC of the Family Law Act, the issues that emerge in this case are as follows: firstly, the benefit to [X] of having a meaningful relationship with his parents; secondly, the need to protect him from physical or psychological harm; thirdly, I think the nature of his relationship with those around him; nextly, the likely effect of changes in his circumstances; nextly, and related to the question of protecting from harm, there are issues of parental capacity. I think there is also an important issue about [X]’s relationship with his brother [Y] and sister [Z].
There is no doubt that the evidence before the Court, not just the evidence of Dr L but the documents that have been tendered during the course of today and indeed previously, indicates that these children collectively, including [X], have been children at risk of harm or neglect for many years. Certainly, the evidence before me leads me to conclude that that was the case for most of [X]’s life. When his mother died, Mr Rowan quite appropriately stepped in and assumed responsibility for his care. He was the logical person to do so under the circumstances. He has been [X]’s sole parent for a period of almost seven weeks.
There are issues that are raised about Mr Rowan’s capacity to adequately parent [X]. I think those concerns are summarised quite comprehensively in the report of Dr L. It is important to just sit back and reflect that Dr L’s evidence is both independent and expert and was based on what appears to have been quite lengthy and comprehensive interviews with the mother, with Mr Glover, with the grandmother, with the children [Z] and [Y] and also with Mr Rowan. There are quite a number of provisions in Dr L’s report that I think should appropriately be incorporated into these ex tempore reasons.
Amongst those paragraphs are paragraphs 73, 78 and 93, and then commencing at paragraph 128 through to 155, which contains a very exhaustive and comprehensive assessment of Mr Rowan on matters of parenting capacity.
It is important to note the summary of Dr L at paragraph 155. He spoke in quite positive terms, in some respects, about Mr Rowan and compliments him, in effect, on being the more nurturing and consistent parental figure to the children, compared to the late Ms Bateman.
However, he notes:
There are significant inconsistencies in areas of avoidance in his conversation that suggests his parenting skills may not be as developed or as consistent as he presents, and his behaviour may be more demonstratively angry and alcohol-affected than he likes to admit. Clearly, his work routine places significant constraints on his ability to act as a sole parent, and he is reliant on the supervision of others and seems to only have an informal and poorly established supervision contract to that effect.
It’s important to note, of course, that, since [X] had come in to
Mr Rowan’s care, he has become a fulltime parent, and he does appear to have put in place some arrangements for support.
However, there are clearly unresolved issues about the extent of
Mr Rowan’s consumption of alcohol and the question of his anger issues. It’s important to note that, whilst I’ve only referred to the summary at paragraph 155, the other paragraphs to which I have referred contain material that, in my opinion, does corroborate Dr L’ concerns about the matters raised in relation to his parenting capacity.
At paragraph 165 of Dr L’s report he makes the comment that
Mr Rowan’s own history suggests some strengths but also vulnerabilities around parenting. He says that he appears to have a need to prove himself as a family man. He’s impressed by his dedication. But then he concludes:
In any case, he presents as caring but potentially neglectful of the children and with significant alcohol-related problems. He does not present, currently, as capable of exercising parental responsibility.
Of course, Dr L was talking about [Y] and [Z]. And the big difference with [X], of course, is that he is much younger, much more vulnerable and, therefore, far less able to exercise any self-protective behaviours. At paragraph 169, Dr L emphasises the importance of bonding between [X] and [Y] and [Z].
Whilst I have only focused on Mr Rowan insofar as my reference to
Dr L’s report, Dr L, of course, also comprehensively assesses the grandmother, the applicant in these proceedings, in terms of her parental capacity. The fact that I have made orders in her favour in the past and the reasons that I have provided in that regard, together with what’s contained in Dr L’s report about the grandmother, indicates that the court would have little, if any, concerns about the grandmother’s capacity to look after [X], even in a context where her accommodation is modest, and even in a context where she already has the responsibility for caring for [Y] and [Z].
True it is that, for all practical purposes, [X], who, at this particular stage of his development, has only a very limited sense of history and time – true it is that [X] has, only known Mr Rowan as his only surviving parent in his life. True it is that this is a sensitive developmental stage for [X] in terms of attachment.
But those issues need to be balanced against the unresolved issues in relation to Mr Rowan that does give the court concerns about the father’s capacity to adequately parent, and the extent to which [X] would actually be safe in his father’s care. Ms Porcheron, on behalf of Mr Rowan, argues I think quite passionately that Mr Rowan has responded in a positive sense to the matters that were raised in Dr L’s report.
And there is some truth to that, certainly in terms of being able to parent fulltime. But many of the other issues raised have not been dealt with, and I think there are too many unresolved issues about alcohol consumption and anger management that continue to give rise to concerns about the question of [X]’s safety in the care of Mr Rowan.
In all the circumstances of the case, the grandmother’s proposal, I think, offers the most benefits to [X]. She appears to be able to provide stable accommodation; her recent past is not nearly as problematic as that of Mr Rowan’s or that of the late mother, and this provides the benefit of [X] being able to live with his siblings, [Y] and [Z].
This is a complicated case. In fact, it is so complex that I intend to transfer it to the Family Court of Australia on the basis that I can easily see the evidence in this case blowing out to five days and probably more. There is also the possibility that, subject to the outcome of the parentage testing, yet another person will become involved in these proceedings.
And I think there is also the possibility – and I’m not quite sure that this has actually been signalled by the grandmother, but it’s certainly been raised by Dr L – that the grandmother will, in the fullness of time, make an application to relocate these children to New Zealand, which, of course, is a matter that the protocol dictates should go to the Family Court of Australia.
Having regard to all of those matters, I think it is in the best interests of [X] that I make an order that he lives with his grandmother and that, for the time being, there be an order for sole parental responsibility. I think such is the level of complexity in this case - and the very nature of the relationships between all of the parties is, I think, so fractured by historical events that whoever cares for [X] needs to be able to make decisions independently of the other. So I think, ultimately, it’s in his best interests that an order for sole parental responsibility be made.
Accordingly, the order will be that, pending further order of the court, [X] live with his grandmother, the applicant in these proceedings; that she have sole parental responsibility; and that there be contact with
Mr Rowan, as agreed between the grandmother and Mr Rowan, and as otherwise facilitated by the Independent Children’s Lawyer.
I’m going to transfer this matter to the Family Court of Australia here in Sydney, and list it for mention on 13 December 2010 at 9.30. And that will be before a registrar of the court. I note that any party who is not physically present may apply to attend by telephone. The only issue that remains is the question of how to implement this order and how to actually get [X] from where he is at the moment down to his grandmother.
[Reasons in relation to stay application not transcribed]
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Date: 23 November 2010
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