Pound and Anor and Fisher and Anor

[2007] FamCA 1358

FAMILY COURT OF AUSTRALIA

POUND AND ANOR & FISHER AND ANOR [2007] FamCA 1358

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Interim orders by consent

Family Law Act 1975 (Cth)

1^ST APPLICANT: Mr Pound

2^ND APPLICANT: Mrs Pound

1^ST RESPONDENT: Ms Fisher

2^ND RESPONDENT: Ms Fisher

FILE NUMBER: SYC 7767 of 2007

DATE DELIVERED: 14 November 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Boland J

HEARING DATE: 14 November 2007

REPRESENTATION

COUNSEL FOR THE 1^ST & 2^ND APPLICANTS: Ms Hausman

SOLICITOR FOR THE 1^ST AND 2^ND  APPLICANTS: Hugh Byrne

ADVOCATE FOR THE 1^ST RESPONDENT: Appeared in Person via telephone

ADVOCATE FOR THE 2^ND RESPONDENT: Appeared in Person via telephone

Orders

IT IS ORDERED BY CONSENT:

1. That pending further order and subject to order 2 the children L born … January 1998 and J born … September 1999 (“the children”) live with the mother.

2. That pending further order the mother is restrained from permitting either of the children to come into contact with Mr B.  The Court notes that the mother is not restrained from spending time with Mr B when the children are not present.

3. That pending further order the mother is restrained from removing the children from the Sydney metropolitan area.

4. That an independent children’s lawyer be appointed for the children AND THE COURT REQUESTS the Director of the Legal Aid Commission of New South Wales to make the appropriate arrangements.

IT IS FURTHER ORDERED:

1. That the solicitor for the applicant grandparents forward forthwith to the said Director a copy of all documents filed in these proceedings by their client.

2. The grandparents’ application filed 8 November 2007 is stood over for an interim hearing before the Honourable Justice Boland on Friday 23 November 2007 at 10.00 am.

3. The father shall file and serve any application and affidavit in support on which he seeks to rely on or before 4.00 pm on 20 November 2007.

4. The father may appear on 23 November 2007 by video from the Family Court of Australia Brisbane Registry and in the event video facilities are not available the father may appear by telephone.  The Court notes that the Registry Manager, Sydney Registry will advise the father if video facilities are available as soon as possible.

5. The mother shall file any response to the grandparents’ application together with any affidavit in support on or before 4.00 pm on 20 November 2007.

6. Liberty to restore to the Honourable Justice Boland on an urgent basis on 24 hours notice in writing to each other party and the Court.     

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7767 of 2007

MR POUND  

First Applicant

And

MRS POUND  

Second Applicant

And

MS FISHER  

First Respondent

And

MR FISHER  

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. Mr Pound and Mrs Pound are the maternal grandparents of L, who is aged 9 years, and J, aged 8 years. Mr and Mrs Pound (“the grandparents”) on 8 November 2007 filed applications in this Court for final and interim parenting orders.  The grandparents seek in those applications orders that the children live with them, and that they spend time with their parents, Ms Fisher (“the mother”) and Mr Fisher (“the father”). 

2. In their interim application, which has been brought before the Court on short notice, the grandparents also seek orders that the mother be restrained from bringing the children into the presence of Mr B.  Mr B was the partner of the mother and is re-establishing a relationship with her. 

3. The asserted urgency of the grandparents' application is based on their concern that the children will be at risk of abuse if they remain living with the mother because of her relationship with Mr B.  The grandparents have filed a Notice of Child Abuse or Family Violence.

4. Today before me the grandparents were legally represented by Ms Hausman of counsel, and the mother sought and was granted leave to appear by telephone.  The mother was served with the grandparents' application only last Friday and she advised me the earliest appointment she had been able to arrange to obtain legal advice was tomorrow.  The father appeared briefly by telephone.  He had not received the relevant documents. He indicated he wished to have orders made in his favour, but was unable to remain on the phone for the whole of the hearing.  The grandparents' solicitor undertook to let him know by phone of the next Court appearance date and orders made today.

5. At the commencement of the hearing Ms Hausman sought on behalf of the grandparents different orders to those in their application.  She explained the grandparents were reluctant to bring proceedings in this Court against their daughter, but had genuine concerns for the welfare of the children.  The orders sought on behalf of the grandparents were reduced to writing in a short minute of orders sought. 

6. After I read the short minute of orders sought to the mother, I stood the matter down so that the maternal grandparents and the mother and the father had an opportunity to discuss the proposed orders.  The mother's initial reaction was to oppose the orders sought in the short minutes of order.  Those short minutes of proposed interim orders are as follows:

   1.An Independent Children’s Lawyer (ICL) be forthwith appointed to represent the children, namely

   L born … .1.1998, &

   J born … .9.1999

   (“the children”)

   2.Pending further order, the children live with the Respondent Mother

   3.Pending further order, the children live with the Applicant Maternal Grandparents as agreed between the parties, but failing agreement as follows;

   (a)each week from after school on the Friday until 4.00pm on the Sunday

   (b)for one-half of the Christmas (2007) school holiday period

   (c)the grandparents to be responsible for the transportation of the children.

   4.Pending further order, the Mother is restrained from the following;

   (a)Permitting Mr B to live at, or enter her place of residence at any time

   (b)Permitting either of the children to come into contact with Mr B

   (c)Taking any steps to discharge or vary the existing APPREHENDED VIOENCE ORDER, made in the Local Court at Blacktown on 1^st February, 2006, in respect of the children named therein, being

   J, born … .9.1999

   L, born … .1.1998 

7. I permitted the grandfather to give some short oral evidence and offered the mother the opportunity to cross-examine him, which she declined.  The mother also gave short oral evidence and was cross‑examined by Ms Hausman.

8. After hearing submissions from Ms Hausman, and after I indicated my preliminary view of appropriate orders, the mother said she would not oppose an order pending further order (and with the matter coming back before the Court on Friday, 23 November 2007):

   (i)that the children remain living with her;

   (ii)that an independent children's lawyer be appointed;

   (iii)that she be restrained from removing the children from the Sydney metropolitan area; and

   (iv)from bringing the children into the presence of Mr B;

   with the Court noting that the mother herself was not restrained from seeing Mr B at any time the children were not with her. 

9. Thus, the only matter remaining in contention today is whether or not the grandparents should spend time with the children until the matter comes back before the Court on 23 November 2007.

The grandparents’ evidence

1. The grandparents' evidence before the Court is principally contained in the affidavit sworn by the maternal grandfather and in particular in paragraphs 21 through to 33 of that affidavit. He sets out with some particularity the grandparents' involvement with the children from February 2006 to April 2007 when the children lived at the grandparents' home at C. He deposes to the accommodation in their house and his commitment in caring for the children.  He also refers to arranging a rental property for the mother and thereafter the purchase of a property for the mother.  He deposes to transporting the children to and from school, and then when the mother resumed the care of the children, arranging taxis for her.  He deposes that the children returned to the mother following school holidays in October 2007, after the children had spent part of the holidays with the grandparents.  The children had returned to the mother’s care it appears in April 2007. 

2. He also gives evidence, that in August 2007 after he had resided with the mother for some time, he ceased residing with her when he suffered a mild stroke. 

3. I am satisfied that the grandparents have had a very hands‑on involvement with the children up to and including the most recent school holiday period.  I am also satisfied this evidence suggests a close and caring relationship by the grandparents with the children and that maintaining their meaningful relationship with the grandparents is likely to be in their best interests.

The mother’s position

1. While the mother has not clearly articulated why she opposes the children spending time with the grandparents, I am conscious she has not had the opportunity, either with or without legal assistance, to put any material before the Court.

Relevant law

1. In considering the grandparents' application, I am bound to follow the provisions of the Family Law Act 1975 (“the Act”) and in particular Pt VII of the Act which deals with certain applications in respect of children. Section 64B prescribes the meaning of a parenting order, which is the type of order sought in this case. Such an order includes an order for a child to spend time with a parent or person or persons. Section 64C of the Act proscribes that:

   A parenting order ... may be made in favour of a parent of the child or some other person.

2. In making a parenting order, a Judge must have regard to the objects and principles underlying Pt VII of the Act as set out in s 60B. That section is in the following terms:

   (1)The objects of this Part are to ensure that the best interests of children are met by:

   (a)  ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)  protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)  ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)  ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)  The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a)  children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)  children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)  parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)  parents should agree about the future parenting of their children; and

   (e)  children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)  For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a) to maintain a connection with that culture; and

   (b)  to have the support, opportunity and encouragement necessary:

   (i)     to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

   (ii)    to develop a positive appreciation of that culture.

3. In deciding whether or not to make a particular parenting order the Court must regard the best interests of the child as its paramount consideration (s 60CA), and in determining the child's best interests to have regard to factors in s 60CC. 

Conclusion

1. In this particular case, the matter came before the Court on short notice.  Whilst there is evidence from the grandparents, I do not have the benefit of any material from the children's parents. In those circumstances, I consider it would be procedurally unfair to the parents to determine any time the grandparents should spend with the children until 23 November 2007. 

2. I am satisfied without such evidence I could not properly, even on an interim basis, give appropriate consideration to the statutory requirements in Pt VII as explained in Goode & Goode (2006) FLC 93-286.

3. I appreciate this decision may appear harsh to the grandparents.  I have, however, considered it is a relatively short period until the matter comes back before the Court when appropriate longer term orders can be considered, particularly with the benefit of submissions from the independent children's lawyer.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland

Associate

Date: 14 November 2007