S and S and Anor
[2007] FMCAfam 789
•2 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S & S & ANOR | [2007] FMCAfam 789 |
| FAMILY LAW – Sole parental responsibility – undefended hearing. |
| Applicants: | H S AND J S |
| First Respondent: | N S |
| Second Respondent: | G |
| File Number: | SYM833 of 2006 |
| Judgment of: | Altobelli FM |
| Hearing date: | 20 July 2007 |
| Date of Last Submission: | 20 July 2007 |
| Delivered at: | Wollongong |
| Delivered on: | 2 October 2007 |
REPRESENTATION
| Solicitor Advocate for the Applicants: | Ms Bailey |
| Solicitors for the Applicant: | Heard McEwan Legal |
| Respondent: | No appearance |
| Solicitors for the first Respondent: | Verekers Lawyers |
| Second Respondent: | Self-represented, no appearance, by consent with the applicants |
| Solicitor Advocate for the Child: | Ms Luke |
| Independent Children’s Lawyer | Lukes Law |
ORDERS
That all previous orders be discharged.
That the maternal grandparents HS and JS are to have sole parental responsibility for the Child E born 30 December 1994 in relation to the care, welfare and development of a day to day and long-term nature involving the child to include, but not be limited to, issues about:
(a)The education of the Child – both current and future;
(b)The health of the Child; and
(c)The travel of the Child (both domestic and international).
That the Child spend time with the Mother in accordance with the wishes of the Child and as agreed between the Mother and the Maternal Grandparents.
That the Child spend time with the Father in accordance with the wishes of the Child and as agreed between the Father and the Maternal Grandparents.
THE COURT FURTHER ORDERS THAT:
The mother is given leave to apply before to re-list this matter in relation to Orders made 20 July 2007 within 28 days from today.
The solicitors for the grandparents to send a copy of these reasons and Orders made 20 July 2007 to the mother at her last known address.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT WOLLONGONG |
SYM833 of 2006
| HS AND JS |
Applicant
And
| NS |
First Respondent
| G |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This application initially came before me on 28 May 2007, having been transferred to the Wollongong circuit by Federal Magistrate Halligan. On that date, I set it down for hearing, noting that a Family Report had already been ordered and an Independent Children’s Lawyer appointed. Accordingly, on 20 July 2007, the matter proceeded to hearing, at which the mother, who is the first respondent, did not appear. The mother’s solicitor informed the Court that the mother did not attend to take part in the hearing, and that her instructions were limited simply to informing the Court that the mother did not wish to proceed with her Response. Ms Mowbray, the solicitor for the mother, was excused from participating further in the proceedings due to her lack of further instructions. As the applicants, who are the maternal grandparents, were present in Court along with their solicitor and the Independent Children’s Lawyer, and as it was clear that the mother was notified of the proceedings and the possible consequences of her non-participation, I allowed the hearing to proceed in her absence.
A minute of the orders sought by all parties except the mother was provided. The father signed this document as evidence of his consent to these orders. The orders sought were:
1. That all previous orders be discharged.
2. That the maternal grandparents are to have sole parental responsibility for the Child E born 30 December 1994 in relation to the care, welfare and development of a day to day and long-term nature involving the child to include, but not be limited to, issues about:
a. The education of the Child – both current and future;
b. The health of the Child; and
c. The travel of the Child (both domestic and international).
3. That the Child spend time with the Mother in accordance with the wishes of the Child and as agreed between the Mother and the Maternal Grandparents.
4. That the Child spend time with the Father in accordance with the wishes of the Child and as agreed between the Father and the Maternal Grandparents.
Apart from the order for sole parental responsibility, they are similar to existing orders.
Background
The applicants are HS, aged 68, and JS, aged 65. They are the maternal grandparents of E, aged 12. The first respondent is NS, aged 35, who is E’s mother. The second respondent is G, aged 35, who is E’s father. E has three younger half-siblings, T, his father’s daughter who was born in 2001, and his mother’s daughters E, born June 2003, and K, born April 2005.
The mother and father commenced a relationship in late 1991, and cohabitation in early 1992. Cohabitation ended in late 1993, prior to E’s birth on 30 December 1994. In his affidavit filed 23 May 2007 at paragraph 15, the father states that initially he did not believe E was his son, but that subsequent to a court-ordered paternity test he accepted E was his son, and has paid child support accordingly. The father has had very limited involvement with E until the last year, when he began to spend time with E.
E has lived on and off with his grandparents and mother. It was submitted by the grandparents that they had cared for him while the mother was at work (a combination of week days, weekends and nights) from 1995 to 1997, then on a more frequent basis from 1997 to 2001, during the time the mother was in a relationship with Mr P. It is the evidence of the grandfather, supported by the grandmother in their affidavits filed 21 May 2007 that this relationship involved domestic violence. At the end of the mother’s relationship with Mr P, the grandparents say that E began living with the grandparents on a fulltime basis. The mother’s affidavit filed 19 February 2007 disputes this, stating that E lived with her and spent significant time with the grandparents until 13 April 2005, when he went overseas with his grandparents and did not resume living with her.
E has not seen his mother since an incident that occurred on 26 July 2006. On this date, the mother collected E from school. The mother in paragraph 54 of her affidavit alleges E happily went with her. It is the evidence of both the mother and the grandparents in their affidavit that the mother notified the grandparents of this by text message. The grandparents went looking for E and his mother, finding them at a bus stop in Austinmer. The details of what happened next are in dispute, but it is common ground that E went home with the grandparents, after telling his mother and grandparents to “please stop fighting” (grandfather’s affidavit paragraph 27; mother’s affidavit paragraph 55). This event appears to have been the catalyst for these proceedings, as it was around this point that the grandparents decided to commence proceedings to obtain orders with regards to E.
The grandparents initially commenced proceedings in the Family Court in an application filed 28 August 2006, which sought that E live with his grandparents, have supervised contact with his mother at least one hour per week, and that the mother and the grandparents have shared parental responsibility.
On 28 August 2007, the matter came before Judicial Registrar Johnston. On this occasion, the father and the maternal grandparents, represented by their solicitor Ms Bailey, were present. The mother was not. On that occasion an interim hearing was held and parenting orders were made in the following terms:
1. I note that the mother has been served with the application yet she has not appeared at Court.
2. I order that pending further order the child E born on 30 December 1994 shall live with his maternal grandparents H S and JS.
3. I order that pending further order said grandparents and the child’s mother be jointly responsible for making decisions about the long term care, welfare and development of the child.
4. I order that pending further order each party be responsible for making decisions about the day-to-day care, welfare and development of the child when he is in their care respectively.
5. I order that pending further order the child shall spend time with his mother as agreed between the grandparents and the mother.
8. I note that the grandparents are concerned that there may be some violence in the mother’s relationship and that the mother is denigrating them to the child when the child is with his mother.
Judicial Registrar Johnston also ordered that an Independent Children’s Lawyer be appointed, and that the proceedings be adjourned to the Registrar’s list in Wollongong.
On 26 September the matter was transferred to the Federal Magistrate’s Court. It then received a further directions hearing, which the mother attended with her solicitor, and an order was made for a Family Report to be prepared, a Response and affidavits to be filed, and the father, who did not appear, to be notified of the orders made.
The matter then came before me as set out in paragraph one.
Issues
At the final hearing, the Applicants sought sole parental responsibility for E, with the child to spend time with his mother and father in accordance with his wishes. The mother, although on notice of the proceedings, was unaware that the grandparents were seeking sole parental responsibility. She had, however, as previously stated, withdrawn her response and indicated she would not be attending through her solicitor, Ms Mowbray.
As the mother has not pressed her response, and indeed has refused to participate in proceedings, having been absent on all bar one occasion the matter has been before the court, the only issue to be decided is that of whether sole parental responsibility should be given to the grandparents. It is noted that the father supports the grandparents’ application to have the child live with them permanently because since E has resided with the grandparents the father has been able to spend time with E on a frequent basis (affidavit filed 23 May 2007, paragraphs 26-27). This did not occur while E was living with the mother.
The evidence and submissions with regards to the issue of sole parental responsibility centred around several key points: the impracticability of consulting with the mother about decisions regarding E; E’s wishes; and the willingness of the grandparents to facilitate a relationship with both the mother and the father.
The grandparents submitted that it would be extremely difficult to consult with the mother with regards to long term decisions about E’s care and welfare. As an example of this, it was stated at paragraph 22 of the grandfather’s affidavit that the mother’s telephone was often disconnected. In oral evidence, both grandparents stated that it was the mother who contacted them, for the reason that she either did not answer her mobile, or did not have a telephone connection, but does, however, have their telephone contact details. As such, they could not initiate discussions with the mother regarding E. By way of further example, in examination in chief the grandfather stated that the mother had not contacted them regarding E’s enrolment in high school. Ms Bailey in closing submissions stated that not only was it impractical to consult with the mother given the difficulties in contacting her, but also that it would be likely to cause substantial frustration and stress to the child, as decisions about him were effectively left in limbo subject to the mother being both contactable and amenable to consultation and agreement.
It is also the submission of the grandparents that E wishes to live with them, rather than his mother. Both Mr and Mrs S gave oral evidence to this effect at hearing, and it is corroborated by the Family Report of Mr L, as well as the Independent Children’s Lawyer, Mrs Luke. The reasons behind this are to some extent set out in the child’s own words in the Family Report. The child stated he had “always been with Nan and Pop” (paragraph 25), and when questioned about his time living with his mother, said “the stuff that I can remember is not always pleasant. It was not exactly stable. There was domestic violence between bad boyfriends.” With respect to the date on which his mother removed him from school, E stated that his mother “was pretty angry and cranky”. In contrast, at paragraph 26 of the Family Report we read “He [E] said that he has “always felt” comfortable, safe, happy and more relaxed with his nan and poppy.
In examination by both solicitors and myself, both grandparents gave evidence that they were willing to encourage E to have a relationship with both his parents. The father’s affidavit attests to the fact that the grandparents have facilitated regular contact with both him and his extended family over the time since the grandparents obtained interim orders with regards to E. There is no reason to believe this will not continue in the future. With regards to the mother, the grandparents have stated they are happy to facilitate a restoration of E’s relationship with his mother, provided it is done in accordance with E’s wishes, in an environment and at a pace that makes him feel safe.
Conclusion
On the facts of this case I am left in no doubt as to the appropriateness of the orders sought including an order for sole parental responsibility. The communication difficulties that exist, let alone the fragmented and often problematic involvement of the mother in E’s life, make it necessary for this order, in the best interests of the child. I am confident that the grandparents will consult with the mother about major long-term decisions about E to the extent that they are reasonably able to.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Altobelli FM
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