Sabela & Sabela (No 2)
[2022] FedCFamC1F 1075
Federal Circuit and Family Court of Australia
(DIVISION 1)
Sabela & Sabela (No 2) [2022] FedCFamC1F 1075
File number(s): BRC 1217 of 2020 Judgment of: BAUMANN J Date of judgment: 20 December 2022 Catchwords: FAMILY LAW – PARENTING – Where the paternal grandmother has a poor health prognosis and seeks time with the children – Where the mother opposes such time occurring – Where risks to the children are untested – Orders for supervised time with a Court Child Expert pursuant to section 65L of the Family Law Act 1975 (Cth) Legislation: Family Law Act 1975 (Cth) s 65L Division: Division 1 First Instance Number of paragraphs: 9 Date of hearing: 20 December 2022 Place: Brisbane For the Applicant: Litigant in person Counsel for the Respondent: Ms Barnes Solicitor for the Respondent: Wilsons The Family Lawyers For the Intervenor: Litigant in person Solicitor for the Independent Children's Lawyer: Legal Aid Queensland ORDERS
BRC 1217 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SABELA
Applicant
AND: MS SABELA
Respondent
MS PRIDDLE
Intervenor
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
20 DECEMBER 2022
THE COURT ORDERS:
1.That pursuant to s 65L of the Family Law Act 1975 (Cth), the parties and the children, X born 2018 and Y born 2019 (“the children”) shall attend an appointment with Court Child Expert, Ms B or such other Court Child Expert as nominated by Court Children’s Service of the Court, at 10.00am on 25 January 2023 as directed by the Court Child Expert at Level 3, Commonwealth Law Courts, 119 North Quay, Brisbane, for the purpose of facilitating the children spending time with the Intervenor paternal grandmother.
2.That the time the children spend with the paternal grandmother be for a period of up to two (2) hours in length, dependent on the children’s needs.
3.That the parties shall participate in the appointment only as directed by the Court Child Expert.
4.That the Court Child Expert shall prepare a formal written report in the proceedings following the children spending time with paternal grandmother.
5.That these proceedings be transferred to the docket of the Honourable Justice Howard for consideration of listing the proceedings for Final Hearing.
6.That the Application in a Proceeding filed by the father on 1 April 2022 be otherwise dismissed.
IT IS NOTED:
A.That the Applicant father has criminal charges in the District Court of Queensland which are to be next heard in mid-2023.
B.That the Respondent mother has pressed and continues to press consistently that the children be permitted to relocate to the United States of America.
C.That the family report writer supports such relocation which is nonetheless opposed by the father.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sabela & Sabela has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BAUMANN J:
This matter has had a long history in the Court. The parents of two children, Y, who is now aged three and a half, and X, who is now aged four and a half, have not spent time with their biological father, the Applicant in these proceedings, for over three years. The mother produces evidence, supported by various records to date but yet untested, that the father has some difficulties with anger and/or may – I put no higher than that at this stage – be responsible for at least psychological, if not physical harm of the children. The father has consistently denied that is the case. He has criminal proceedings which are pending before the criminal courts which he hopes will be resolved in mid-2023 and which, as I understand his case as he is representing himself, he hopes will prove his innocence.
The proceedings were commenced by the father in February 2020 and were managed, initially in the Federal Circuit Court of Australia (as it then was), and transferred to the Family Court of Australia (as it then was) in May 2020. There is no point in going through all the different steps that have taken place, save to note that the matter first came to my attention in October 2022 when I gave the paternal grandmother, for reasons delivered orally at the time, leave to intervene. The grandmother had filed an application (the second time) to spend time with her grandchildren. An earlier application had been dismissed at the time by the Senior Judicial Registrar.
However, the context for the current application which the unrepresented paternal grandmother filed in April 2022 (but in my view, and curiously, was not dealt with in the case management to date) is that the grandmother has severe complications arising from a medical condition. Today she produced, and I have marked this Exhibit 1, the most recent assessment of her condition in a letter from Dr C, a medical professional at the D Hospital. The doctor opines that the paternal grandmother, “unfortunately has a short prognosis which we would estimate at less than six months.”
I am satisfied that it is a fact that when at least X was a baby, had some interaction with the grandmother. It is not likely that the time available to the grandmother, once all the issues of risk have been determined at a trial (and noting that the primary application of the mother is to relocate to the United States), that there will be any opportunity for 12 months. The grandmother’s prognosis suggests sadly she may have passed by that time. The grandmother says, and I accept sensibly, that she would at least like to see her grandchildren before the likely effects of her medical treatment make her presentation less than she appears before the Court today. From my observation from the bench, this 64-year-old lady seems reasonably healthy. She is supported in Court by her own mother, who no doubt is suffering the grief of the diagnosis her daughter is facing.
Children have a right to be safe in interactions with people who care for and love them. The untested allegations in this matter are such that the Court could not contemplate other than supervised time in a controlled environment. The Court does not ignore that the mother has some reservations about any time occurring between the children and the grandmother, and doubts any benefit flow to them from such interaction. However at times in life, decisions need to be made in the context that this might be the only opportunity they have to spend time, and to hopefully have a positive memory of a person who is, as a matter of fact, their biological grandparent.
Ms Priddle should not expect more than the children can deliver to her in such a short occasion. I cannot, nor will I, make any particular direction to the mother about how she should prepare the children for the event that will occur before a Court Child Expert here in the Registry in Brisbane later in January. I will make a copy of these Reasons available to the Child Court Expert, however, at the very least, I am satisfied that the grandmother will do her best to control her emotions and to do her best not to engage the children in any discussion which are likely to upset them, confuse them or emotionally damage them. That is not the purpose of this visit. The purpose of this visit is to establish, in the child’s minds at least, part of their heritage which cannot change by any order of the Court.
In my view, it is in the best interests of the children that the mother be required to bring the children to the Court pursuant to section 65L of the Family Law Act 1975 (Cth) for a visit with the grandmother. I accept that it may have been nice for the paternal great-grandmother to be present as well but, in my view, the important connection is between the grandmother and the children and her current position makes it important to maximise the opportunity for the grandmother and the children to spend time and not to have it diluted by other persons. That is not a criticism of the great-grandmother, just a statement in my view of reality.
For those reasons, the Court makes the Order at the commencement of these Reasons. I dismiss the application in a proceeding otherwise. I shall assign this case to the Honourable Justice Howard for further case management in 2023 noting:
(a)the father does have criminal charges due to be heard by the District Court of Queensland, he hopes, in mid-2023; and
(b)the mother presses, and has pressed consistently, for an order that the children be permitted to relocate to the United States with her.
I note that the family report of Ms B, the Court Child Expert engaged by Court Order, supports such a relocation, but it is nonetheless opposed by the father.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 19 January 2023
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