Sandberg and Nesbitt and Ors

[2013] FCCA 1073

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANDBERG & NESBITT & ORS [2013] FCCA 1073

Catchwords:
FAMILY LAW – Children – injunction – where child lives with paternal grandmother – best interests of the child – greater weight given to the need to protect the child from harm – where family violence order in force until 14 June 2014 – injunction issued for the protection of the child.

Legislation:
Family Law Act 1975 (Cth), ss.60CA, 60CC, 65C, 68B

Applicant: MS SANDBERG

First Respondent: MR NESBITT

Second Respondent:

Third Respondent:

MS JENNER

MS KELLEMS

File Number: SYC 3008 of 2012

Judgment of: Judge Scarlett

Hearing date: 8 August 2013

Date of Last Submission: 8 August 2013

Delivered at: Sydney

Delivered on: 22 August 2013

REPRESENTATION

Counsel for the Applicant: Mr Jackson

Solicitors for the Applicant: Brooks Howick Law

First and Third Respondents: No appearance

Counsel for the Second Respondent: Ms Friedlander

Solicitors for the Second Respondent: Marsdens Law Group

ORDERS

1. The Applicant is restrained from bringing the child [X] BORN [in] 2004 into the care of the First Respondent MR NESBITT or from permitting any third person to do so.

2. The First Respondent MR NESBITT is restrained by injunction from:

   (a)Entering or going within 100 metres of the residence of the child [X];

   (b)Entering or going within 100 metres of any school attended by the child [X]; or

   (c)Approaching or contacting the child [X] by any means whatsoever except through his legal representative.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 3008 of 2012

MS SANDBERG

Applicant

And

MR NESBITT

First Respondent

MS JENNER

Second Respondent

MS KELLEMS

Third Respondent

REASONS FOR JUDGMENT

Application

1. These proceedings have been about parenting orders relating to a girl called [X], who is 9 years old. [X] was born [in] 2004.

2. The Applicant is the child’s paternal grandmother. She has applied for parenting orders under the provisions of s.65C(ba) of the Family Law Act 1975 (Cth).

3. The Second Respondent is the child’s maternal grandmother.

4. The First and Third Respondents are the child’s mother and father. They have played no part in the proceedings at all.

5. The two grandmothers, who are both motivated by a desire to achieve the best outcome for their granddaughter, have negotiated a comprehensive set of parenting orders providing that the child would live with her paternal grandmother, who would have sole parental responsibility for her. These Orders were made by consent on Thursday 8 August.

6. Under these Consent Orders, [X] will spend regular periods of time with her maternal grandmother, who does not live in New South Wales, during the school holidays. The maternal grandmother will also telephone the child every Wednesday evening.

7. It is noteworthy that Order 6 provides that:

   The Second Respondent Maternal Grandmother is not to leave the child in the care of the Third Respondent Mother at any time.

8. The Orders also provide that the mother may telephone her daughter at times agreed with the Applicant Paternal Grandmother.

9. The only issue that has arisen is that the Second Respondent seeks an order that the First Respondent, the child’s father, is not to spend any time with the child at all.

10. The Applicant opposes this proposed Order.

Submissions

1. The Second Respondent submits that there is a fear that the Father may take the child away and not return her, as he has done in the past. Previously, when the child was with him the father neglected her.

2. The Applicant submits that there are no parenting orders in force in favour of the Father. The Court should have more evidence before it makes an order prohibiting contact by the Father with his child.

3. Further, an express prohibition would make it harder for the Father to overturn the order, if he were to seek to do so.

Heading

1. The Court is required by s.60CA of the Family Law Act to regard the best interests of the child as the paramount consideration when it is considering making a parenting order.

2. The Court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of s.60CC of the Act. The primary considerations are:

   a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. Of those primary considerations, the Court is required by s.60CC(2A) to give greater weight to the consideration set out in paragraph (b), the need to protect the child from harm.

4. The child’s parents have not taken any part in these proceedings and, on the evidence, neither parent is playing any role in this child’s life. It is well-nigh impossible to say that this child has a meaningful relationship with either of her parents.

5. The Applicant Grandmother commenced these proceedings, as her affidavit of 23^rd May 2012 shows, because of the Father’s behaviour. In her affidavit, she deposed that:

   a)the Father had been using illicit drugs since he was fourteen years of age[1];

   [1] Affidavit of Ms Sandberg 23.5.2012 at paragraph [6]

   b)the Father had used violence on his brother when he hit him on the head with a baseball bat, causing a hole in his skull[2];

   [2] Ibid at [11]

   c)the Father took the child to Queensland in 2009 to live in a tent and she did not attend school for the second half of the year[3];

   d)the child told her that the Father “drank a lot and was in fights”[4];

   e)when the Father brought the child back to [omitted] in December 2009 she was wearing dirty clothes and had a dirty face[5];

   f)the child has been in the Applicant’s care since New Year’s Eve 2009[6];

   g)in January 2012 the Father took the child away for four days, without a change of clothes[7];

   h)the Father was drinking heavily in early 2012;[8]

   i)the Father threatened the Applicant that he would “do her in”[9]; and

   j)the Applicant feared that the Father would take the child away, saying:

   From this time on I am fearful that if [Mr Nesbitt] takes her he will not bring her home and he will disappear with her as he has done in the past. He does not have a place to live. He has not had a permanent address for a number of years. I fear he will collect her from school and leave for another state, or anywhere.[10]

   [3] Ibid at [20]

   [4] Affidavit of Ms Sandberg 23.5.2012 at [23]

   [5] Ibid at [29]

   [6] Ibid at [34]

   [7] Ibid at [57]

   [8] Ibid at [64], [66]

   [9] Ibid at [65], [74]

   [10] Ibid at [75]

6. The Applicant deposed that the Father came to her [workplace] on 4^th April 2012, smelling of alcohol and demanding to take the child, in the course of which he acted in a threatening manner towards her.[11] The Applicant reported his behaviour to the Police who applied for an Apprehended Violence Order on behalf of her and the child.

   [11] Ibid at [77][79]

7. The Apprehended Violence Order is in force until 14^th June 2014.

8. The Applicant annexed to her affidavit a letter dated 21^st May 2012 from a psychologist called Ms R, who had conducted a psychological assessment on the child. Ms R reported that the child disclosed to her that she was frightened of her father because of his drinking and his violent behaviour and feared that he would try to take her away fro her school. Ms R stated I her letter that:

   There is no doubt [X] is being exposed to psychological harm and her safety is at risk. It is imperative immediate steps are taken to ensure Mr Nesbitt cannot approach or contact her.[12]

   [12] Affidavit of Ms Sandberg 23.5.2013 Annexure “G”

9. In my view, there are grounds for making an injunctive Order under the terms of s.68B of the Act for the personal protection of the child and of the Applicant. The terms of the current Apprehended Violence Order offer some guidance as to appropriate orders to safeguard the child’s safety.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  16 August 2013