Russell and Russell and Anor

[2007] FamCA 270

FAMILY COURT OF AUSTRALIA

RUSSELL & RUSSELL AND ANOR [2007] FamCA 270

FAMILY LAW - CHILDREN – With whom a child lives - Where child attends school - Interim

Family Law Act 1975 (Cth)

APPLICANT GRANDMOTHER: MRS RUSSELL

FIRST RESPONDENT AND SECOND RESPONDENTS (PARENTS): MS R RUSSELL AND MR CASS

FILE NUMBER: NCF 12 of 2007

DATE DELIVERED: 05 February 2007

PLACE DELIVERED: Newcastle

JUDGMENT OF: Loughnan JR

HEARING DATE: 05 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Heazlewood

SOLICITOR FOR THE APPLICANT: MBG Lawyers

SOLICITOR FOR THE RESPONDENTS: Mr Gol

Orders

1. Leave to inspect documents produced on subpoena by:

Local Court T
           Department of Education and Training
           B Pty Ltd
           A Creche
           Dr S
           New South Wales Police

1. Orders are made in terms of the document titled “Applicant’s Proposed Short Minutes” marked Exhibit 1 and attached hereto.

1. The Court requests that the Principal of W Public School assist in the re-enrolment of the child in that school pending further agreement between the parties or further order of the Court.

1. These orders are by way of variation of the T Local Court made in December 2006.

1. Pursuant to Section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the child, a daughter, born in May 2001

1. The Legal Aid Commission of New South Wales is requested to make arrangements as soon as possible for appropriate representation for the child.

1. The solicitor for the Applicant is to advise the Senior Solicitor, Family Law Litigation Section of the Legal Aid Commission of New South Wales of this order within 24 hours.

1. The solicitors for each party are to provide copies to the Legal Aid Commission of New South Wales of any relevant documents in the substantive proceedings within 14 days from today’s date.

1. Leave is granted to approach the Listing Manager for the first date of the commencement of the Less Adversarial Trial.

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCF 12 of 2007

MRS RUSSELL

Applicant grandmother

and

MS RUSSELL & MR CASS

First and second respondents (parents)

REASONS FOR JUDGMENT

1. These are proceedings in relation to a child, a daughter, born in May 2001. She is 5 years and eight months of age.  The parties are the maternal grandmother who says she is about 50 years of age, and the parents who are 26.

2. The parents started to live together in 2000.  I am not sure when they separated.  The daughter is their only child.

3. This is a dispute about where this child will live pending the final hearing.  There are a lot of disputed issues and I cannot get to the bottom of them, but in shorthand terms, the maternal grandmother has had substantial care of the child for the recent past.  That is up until a decision was made just before Christmas.  For a substantial part of 2006 the maternal grandmother was in effect responsible for day to day matters to do with the child. The child saw her parents for periods.

4. The maternal grandmother says it is more than that.  She says that for virtually the whole of the child's life she has been responsible for raising her and that the parents, whether they were together or separate, were less involved with the child. 

5. The maternal grandmother has raised some concerns in relation to the behaviour of the parents going to their ability to support the child, their ability to feed the child, the accommodation they have been able to provide and whether that accommodation is secure.  She has raised some concerns in relation to drug taking, but none of that matters much today. 

6. The focus of these proceedings really is on the uncontested facts. It is not disputed that, whether it was part of some other agreement or an agreement by itself or an indefinite agreement, the parents decided to leave the maternal grandmother substantially responsible for this girl for the recent past.

7. The parents asked the Local Court at T to make an ex parte order, to have the child recovered to their care. They represented to that Court that there was an arrangement that the child would come back to live with them, that the maternal grandmother had reneged on the arrangement, that there was a possibility that the child might be taken away to some place they did not know about, and they told the police, if not the Court, that they apprehended that there would be some conflict at the point of them seeking to have the child returned.  They say that they were not able to contact the maternal grandmother, despite having left messages on her phone. On that basis a Recovery Order was granted and the child has been substantially with the parents since, and that involved a relocation for the child.

8. There was counselling on 8 January and it was recommended that a family report be prepared.  The factual dispute that I have identified has been mentioned.  There was reference to neglect and abuse by the parents and marijuana used by the father. I think he substantially agrees with the last matter at least until recent times.

9. On 22 January the counsellor saw the parties again and indeed the counsellor saw the child. The subject child is clearly very close and comfortable with both the applicant maternal grandmother and also the parents.  There is no corroboration of the maternal grandmother's concern about the parents' drug dependency, alcohol and drug issues.  The subject child has significant dental decay indicative of a lack of dental hygiene, unless there is some other diagnosed dental disorder. A judicial decision is required.

10. When an ex parte order is made it is an affront to the justice system.  It is an order made without the opportunity of the other party being heard. They are sometimes made in desperate circumstances, but the first rule about them is that the applicant is required to put all relevant evidence before the Court.  The next rule is that there has to be an opportunity for a hearing on the merits as soon as possible for the other party to be heard. 

11. I do not know whether the Court was misled, but the case presented was not a case whereby the parents alleged they had any real concerns about the safety of the child.  They just wanted the alleged agreement enforced.

12. The approach of the parents has caused the child some embarrassment.  I am left with the position of deciding whether to reward the parents who caused the child to be embarrassed by being taken away from one school without the opportunity to say goodbye to everybody, by avoiding a further change of circumstances, or to put the child to the further embarrassment of moving back to her old school?  That is why this sort of decision should not be taken suddenly.

13. The law has been changed as of July last year.  The principle used to be that if there was a settled arrangement left in place for some significant time then, unless there was convincing danger to a child, the child would be left in that situation.  That, in this case, would have the child immediately returned to the maternal grandmother.  That is no longer the law. 

14. The Court has said that if that was ever good law it is not good law now, given the changes to the legislation. The legislature has tried to bolster the role of parents and bolster the role of grandparents and in doing all of that it has dealt only with the case of parents in relation to decision making.  There are a whole lot of principles that do not sit very comfortably with this case that go with decision making. The legislation does not sit comfortably with parents living together. In those circumstances an order that a child live for equal time with each parent is unnecessary.

15. As to decision making responsibility, as Mr Gol has quite ably said, the fact that the child was with the maternal grandmother was itself an expression of the parents' decision making responsibility. No one seeks to criticise that decision.  The maternal grandmother obviously thinks it was a sensible decision. The parents would say that it was part of their normal order of life and they were getting on trying to build a life for themselves and for their daughter and secure her financial future.  So everybody has agreed about that.

16. The problem is when there is no agreement about the next step. In my view it is logical to go back to the last time the parties agreed. Hopefully that will not cause too much embarrassment.

17. As to the other allegations, we will be able to address them over time.  I am going to order that the child be represented, so that there is somebody who can focus on getting any objective evidence together, and seeing whether there needs to be any particular reports from any outside expert in relation to the child.  There has been a mention of the child having a skin condition.  There is mention of a concern about her teeth and there is always potential in a case like this where the child has been something of a football between households, that there might have been some psychological harm done to her.

18. The maternal grandmother said late last year she had real difficulty getting the child to go to school, until she said to the child:

    "It's okay.  The only people that will collect you from school are me and my husband."

19. And there is reference from the police:

    "You know about the child being agitated away from the maternal grandmother?" -

    inferring that the child was comfortable with the maternal grandmother:

    "agitated for a while coming back to the parents but then settled down."

    So you do not know whether the child has got some psychological problems or not.

20. The parties are casting aspersions at each other.  The maternal grandmother said this is all intended for profiteering, and I assume what she means by that is something to do with Centrelink benefits for a child living with the parents or with her.  The mother puts that directly into question.  She says that at no time has she claimed any Centrelink benefits, apart from I think a Family Allowance or Tax Benefit, that at no time has she claimed any financial benefit because the child is living with her.  The proof will be in the pudding about that and we will find out about those things.

21. For all I know the child is safe and loved. That there are two loving parents who want to now have the child back living with them. That there is a loving maternal grandmother who has taken the load when she was asked to. That there is a paternal grandfather who has had some issues with his own son from time to time, but he is providing support to the parents and to his grand-daughter.  So often I deal with cases where there is nobody able or willing to step up and take care of a child. Apart from the ex parte application to the Local Court all may be well.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Judicial Registrar Loughnan

Associate: 

Date: 29 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as RUSSELL & RUSSELL AND ANOR