Shepard and Anor and Shepard

[2015] FCCA 1025

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHEPARD & ANOR & SHEPARD [2015] FCCA 1025

Catchwords:
FAMILY LAW – Children – Parenting Orders – interim orders – application by maternal grandmother and her partner – child aged 9 years – declaration that second applicant a person concerned with the care, welfare or development of the child – Child Dispute Conference – allegations of drug and alcohol abuse – separate representation of child – appointment of independent children’s lawyer.

Legislation:

Family Law Act 1975 (Cth), ss.11C, 11F, 65C, 68L

Cases cited:
Re K (1994) 17 Fam LR 537; FLC 92-461

First Applicant:

Second Applicant:

MS S SHEPARD

MR HAMILTON

Respondent: MS C SHEPARD

File Number: SYC 351 of 2015

Judgment of: Judge Scarlett

Hearing date: 20 April 2015

Date of Last Submission: 20 April 2015

Delivered at: Sydney

Delivered on: 20 April 2015

REPRESENTATION

Applicants: In person

Respondent: In person

ORDERS

UNTIL FURTHER ORDER

1. The Applicants and the Respondent are directed to attend a Child Dispute Conference under the provisions of s.11F of the Family Law Act 1975 on 26 May 2015 and in accordance with s.11C of the said Act the conference is to be reportable.

2. The Respondent is to file and serve a Response to the Application and an affidavit stating the facts upon which she seeks to rely within 28 days.

3. The Second Applicant MR HAMILTON is declared to be a person concerned with the care, welfare or development of the child [X] known as [X] born [in] 2005.

4. All earlier parenting Orders are suspended.

5. The child [X] born [in] 2005 is to live with the Applicants.

6. The Applicants are to have equal shared parental responsibility for the child [X] for the purposes of all day-to-day matters concerning the care, welfare and development of the child including but not limited to:

   (a)Health and medical issues;

   (b)Education and schooling; and

   (c)Extra-curricular activities.

7. The respondent mother is to spend time with the child [X] by arrangement with the Applicants on at least one occasion each week for a period of not less than two (2) hours.

8. In accordance with the provisions of s.68L of the Family Law Act 1975 the interests of the child [X] born [omitted] 2005 are to be independently represented by a lawyer and for this purpose Legal Aid NSW is requested to arrange this representation.

9. The Applicants and the Respondent must forward to Legal Aid NSW within 14 days copies of all Applications, Responses, affidavits and other relevant documents for the use of the Independent Children’s Lawyer when appointed.

10. The Independent Children’s Lawyer is granted leave to issue up to ten (10) subpoenas without charge.

11. The name of the child [X] is to be removed as a party to the proceedings.

12. The Application is adjourned to Wednesday 3 June 2015 for mention at 10:00 am in Court 3A.   

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYC 351 of 2015

MS S SHEPARD AND MR HAMILTON

Applicants

And

MS C SHEPARD

Respondent

REASONS FOR JUDGMENT

1. The application before the Court is an application for parenting orders in respect of a little girl called [X].  [X] was born on [omitted] 2005.  There are currently in existence orders made by this Court at Parramatta in respect of proceedings between the child’s mother, who is the Respondent to these proceedings, and the child’s natural father, one Mr H.  In those proceedings Halligan FM, as His Honour then was, made orders by consent providing the child would live with the mother and that she should have sole parental responsibility for the child.  The proceedings have been brought about due to a change in circumstances affecting the child. 

2. It appears to be common ground that for most if not all of the child’s life she has been residing in the residence of her maternal grandmother and the grandmother’s partner, Mr Hamilton.  For most of that time the mother has been residing there, but the mother has recently gone elsewhere.  The Applicants have serious concerns relating to the mother, which they say have to do with her abuse of illicit drugs and her abuse of alcohol.  The mother does not necessarily agree with that, but she has today sought an adjournment of these proceedings so that she may obtain proper legal representation.  The Applicants have opposed the adjournment on the basis that the mother was served with the documents concerned as long ago as 2 March.  They say that she has had ample time to obtain legal representation, and they say, although the mother does not agree, that this application is a ploy to avoid making a decision. 

3. The Applicants also seek interim orders to be made today to cover the situation of the child [X] remaining in their care whilst these proceedings make their way through to finalisation.  In an affidavit in support of an Application in a Case the applicants express concern that they were told by a Registrar that it could take from one year up to three years in order for final orders to be made.  This has caused them a considerable amount of concern. 

4. In particular they seek an order preserving [X]’s status at this stage, not just for the reason that they do not wish any person to remove her from their care but also so that they can attend to day-to-day matters relating to the child’s health, medical issues, education and extracurricular activities.  They need to be in a position where they can authorise such things to take place.  They would prefer to have the child covered by their health insurance scheme and, in fact, on their Medicare card in order to make claiming for medical issues less complicated.  They are concerned about giving consent to extracurricular activities at school or school matters.  The mother has indicated that for the time being, that [X] is fine in their care but that is not the same as consenting to any order.  The mother says that she has been somewhat intimidated by a request from the Applicants to sign a lengthy and complicated parenting plan. 

5. It is hardly surprising that she wishes to obtain her own legal advice and representation. In the interests of justice, she should be permitted to do so. At the same time, however, the Court must consider the best interests of the child as the paramount consideration. That is made very clear by the provisions of section 60CA of the Family Law Act (Cth). Section 60CC of the Act, in subparagraphs (2) and (3), sets out the primary considerations and the additional considerations in deciding what is in a child’s best interest.

6. Clearly, the protection of the child from harm, from being subject to or exposed to abuse, neglect or family violence is highly important and the benefit to the child of having a meaningful relationship with her parents is important, although it appears that the natural father is completely out of the picture.  The child’s relationships with other family members including grandparents are also a matter of concern to the Court, under section 60CC(3), and the need to consider the effect of any change in circumstances upon the child is a consideration that springs strongly to mind. 

7. At the moment, the current legal position is that set out in the consent orders made in this Court at Parramatta Registry on 26 July 2007. It seems to me that in the current circumstances, those orders are not appropriate. I have already directed that the parties should attend a child dispute conference with a family consultant under the provisions of section 11F of the Family Law Act 1975 and that the conference should be reportable under the provisions of section 11C. An appointment has already been made for that Child Dispute Conference and it will take place on 26 May.

8. However, the best interests of the child, in my view, cannot wait until that conference.  I am of the view that the Respondent mother should be given the opportunity to obtain her own legal advice and she should file a response and an affidavit stating the facts upon which she seeks to rely.  I propose to allow her 28 days in order to do that.  I do, however, propose to make some interim parenting orders to tide the child over until the matter can be given further consideration, possibly at a final hearing in due course, but for orders to be in force until the Court makes further orders. 

9. Those orders will provide for the child’s continuing residence with the Applicants and will provide for them to have the authority to make decisions day-to-day basis about the child’s health, about the child’s education and about extracurricular activities and other matters that are necessary for this child’s care, welfare and development. The Applicant grandmother is the child’s maternal grandmother. She has a right to apply for parenting orders under the provisions of section 65C of the Family Law Act 1975. 

10. The Applicant de facto partner of the grandmother does not have the same right enshrined in law except that the Court may find, as I intend to find, that he is a person concerned with the care, welfare or development of the child and I propose to make that declaration.  It also seems to me that the concerns which are alleged – and I stress that they are alleged and not proven – about the mother’s abuse of alcohol and illicit drugs are matters that require further investigation. 

11. Not only should the mother be given the opportunity to reply to those allegations but, in my view, this brings the matter into the area under section 68L of the Family Law Act 1975 where the Court should consider the appointment of an Independent Children's Lawyer to represent the interests of the child independently from the parties.  Neither of the parties is legally represented at this stage.  The mother may well be at some stage in the future. 

12. In my view, this is clearly a case which meets the guidelines as set down by the Full Court of the Family Court of Australia in the 1994 decision of Re K[1] and I am satisfied that this is a matter where this child’s interests should be independently represented by a lawyer and I intend to make orders so that that may take place.  It will normally be the case that an Independent Children's Lawyer can be appointed and be able to appear in Court within about four weeks to a month.  That, in fact, fits in nicely with the timescale looking at the date when we have a child dispute conference. 

    [1] (1994) 17 Fam LR 537; FLC 92-461

13. There will be a lot for the parties to do between now and when this matter comes back to court but it must be made quite clear that the Court’s priority will be the best interests of the child and the preservation of her safety and stability. The child’s best interests must rank more highly than the wishes of any of the other parties. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  23 April 2015