Randwick & Anor and Keefe & Anor

[2013] FamCA 1145

FAMILY COURT OF AUSTRALIA

RANDWICK AND ANOR & KEEFE AND ANOR [2013] FamCA 1145

FAMILY LAW – CHILDREN – mother to have sole parental responsibility – child to spend time with the paternal grandparents – paternal grandparents to ensure the father has no contact with the child unless agreed between the mother and the paternal grandparents – father to spend time and communicate with the child as agreed between the father, the mother and the paternal grandparents.

Family Law Act 1975 (Cth)

APPLICANTS: Mr Randwick
Ms Randwick

FIRST RESPONDENT: Ms Keefe

SECOND RESPONDENT: Mr T Randwick

INDEPENDENT CHILDREN’S LAWYER: Andrew Webb Family Law

FILE NUMBER: MLC 8505 of 2011

DATE DELIVERED: 17 April 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 17 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANTS: In person

SOLICITOR FOR THE APPLICANTS: N/A

COUNSEL FOR THE FIRST RESPONDENT: In person

SOLICITOR FOR THE FIRST RESPONDENT: N/A

COUNSEL FOR THE SECOND RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms McNamee

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Andrew Webb Family Law

Orders

IT IS ORDERED BY CONSENT THAT

1. All current Orders be discharged.

1. The mother have sole parental parental responsibility for H born … 2006 ("the child").

1. The child live with the mother.

1. The paternal grandparents spend time and communicate with the child as follows:

   a.On Sunday 28 April 2013, Sunday 5 May 2013 and Sunday 19 May 2013, from 10.00 a.m. until 2.00 p.m.;

   b.From Sunday 2 June 2013, from 10.00 a.m. until 4.00 p.m. each alternate Sunday;

   c.In the event that the child will be away from the T Town area during a school term holiday period or long Summer school vacation period, which impacts on the paternal grandparents’ time with the child such time be suspended upon the mother giving prior written advice to the paternal grandparents and, if practicable, make-up time be arranged between the mother and the paternal grandparents; and otherwise, the time as set out in the preceding paragraph continue during school vacation periods;

   d.As is otherwise agreed between the mother and the paternal grandparents from time to time.

1. During the paternal grandparents’ time spent with the child as set out in paragraph 4 above, the paternal grandparents shall ensure the father has no contact, in any form, with the child, unless otherwise agreed between the mother and the paternal grandparents.           

1. In the event the paternal grandparents’ time with the child shall fall on the child's birthday, the mother's birthday, Christmas Day, Easter Sunday or like special occasion for the child or mother, such time be suspended and the mother and the paternal grandparents shall arrange make-up time.

1. The parties advise each other as soon as practicable of any significant illness or significant accident suffered by the child whilst in their respective care, with the mother to give authority to any relevant health professional involved with the child, including any counsellor or psychologist, to liaise with the paternal grandparents on any significant issue affecting the child.

1. The father spend time and communicate with the child in accordance with any agreement between himself and the mother and the paternal grandparents.

1. For the purposes of changeover, unless otherwise agreed, the mother and the paternal grandparents meet at McDonalds Family Restaurant at B Town for the first two occasions the paternal grandparents spend time with the child and thereafter, the mother or her nominee deliver the child to the paternal grandparents’ home at the commencement of time with the child and the paternal grandparents or their nominee deliver the child to the mother's home at the conclusion of time.      

10.Each of the mother, the paternal grandparents and the father and their servants and agents, be and are hereby restrained by way of injunction from denigrating the other and/or members of the other's family in the hearing or presence of the child and from allowing any other person to do so in the child's presence.

11.The mother authorise the school the child attends to provide information, at the paternal grandparents' expense, concerning the progress of the child at school, with the paternal grandparents able to attend school on occasions that the school arranges for a grandparent to attend.

12.Each of the parties be and are hereby restrained from consuming alcohol to excess, or using illicit drugs or prescription or patent medications, other than in accordance with any prescription or directions for use, or allowing other persons to do so, while the child is in their care or for 12 hours prior to any period when the child is due to come into their care.

13.Each of the parties be and are hereby restrained from posting or allowing, causing or permitting any comment to be posted to any social media page, including Facebook, Twitter, or other form of web based communication regarding the child, or referring to or commenting on any other party to these proceedings or members of any party's family.

14.Each party keep the other parties advised at all times of their residential address, a contact telephone number and email address.

15.The mother and the paternal grandparents communicate by way of email wherever possible, save in an emergency.

16.In the event the parties require assistance in the implementation of these Orders or prior to seeking a variation of these Orders, the parties shall utilise mediation or similar service prior to issuing proceedings.

17.Pursuant to s 65DA(2) and s 62B the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an Order as set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

18.Certify for advocacy.

19.The order made appointing the Independent Children's Lawyer be discharged.

IT IS FURTHER ORDERED THAT

20.All extant applications be otherwise dismissed and removed from the list of cases awaiting hearing.

21.As soon as practicable, the Independent Children’s Lawyer serve a sealed copy of the orders made this day upon the father by pre-paid post addressed to 6 C Street, D Town, Victoria.   

IT IS DIRECTED THAT

22.All subpoenaed and exhibited documents be returned on the usual basis to the person producing same.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8505 of 2011

Mr Randwick and Ms Randwick

Applicants

And

Ms Keefe

First Respondent

And

Mr Randwick

Second Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS

1. The matter is listed before me today for a final hearing of the applications of the paternal grandparents, the father, and the mother.  The child the subject of these proceedings is H born in 2006.  She presently resides with the mother. 

2. On 3 December 2012 I made orders setting the matter down for hearing before me this day, and for the filing of documents by the applicant paternal grandparents and the father and the mother.  On that date, the paternal grandparents were represented by Mr Lovering of counsel, the mother appeared in person, and Mr Pavone of counsel appeared on behalf of the Independent Children’s Lawyer.  As the father did not appear on that date, I ordered that he file and serve an affidavit setting out the reasons for his non-attendance and specifying any orders which he was seeking.

3. The history of the matter is that proceedings were commenced in the then Federal Magistrates Court of Australia and on 7 February 2012 the father filed a Response in which he sought residence of the child.  Orders were made on an interim basis by Harman FM, as he then was, following a contested hearing on 21 February 2012 which provided for the discharge of all previous parenting orders and that the mother have sole parental responsibility for the child, that she live with her mother, and spend time with the paternal grandparents each Sunday, save the last Sunday of each calendar month, from 10.00 am until 4.00 pm and from 2.00 pm to 4.00 pm on her birthday.  There were further orders made requiring the father to undergo supervised blood screening or urine analysis testing in accordance with the appropriate Australian standard for various drugs, and subject to those tests being satisfactorily completed and being clean, he would be permitted to be present during the time his parents were to spend time with the child. Harman FM, as he then was, also transferred the matter to this court.  It is those orders which are the genesis of these proceedings, as on 22 June 2012 the applicant grandparents filed an application for contravention.

4. The father did file affidavit material, although not by the time prescribed in my orders, in which he deposed that he was seeking orders that the child live with him.  He, however, has not appeared today, and whilst the paternal grandparents expected him to appear, they do not know where he is or why he has, in fact, not appeared today.

5. A family report was completed pursuant to my orders made on 3 December 2012 and in that report the report writer has expressed some very real reservations about the father spending time with the child.  He ultimately recommended that any time the father was to spend with the child should be supervised, but that an order should not be made for even supervised time until the father had undertaken a neuropsychological assessment and had undertaken some rehabilitation including, he said, detoxification, alcohol and drugs counselling and a men’s behaviour change group, including anger management. 

6. As the father has not appeared today I propose to dismiss his application.  I am satisfied in doing so that the orders that I am being asked to make by the paternal grandparents and the mother are in the child’s best interests.  They do not include an order that the father spend any time with the child. They do, however, include an order that the father spend time and communicate with the child in accordance with any agreement between himself and the mother, and the paternal grandparents.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 17 April 2013

Associate: 

Date:  21 August 2013