Sidesea and Gall and Ors

[2010] FamCA 178

FAMILY COURT OF AUSTRALIA

SIDESEA & GALL AND ORS [2010] FamCA 178

FAMILY LAW – CHILDREN – With whom a child lives

Family Law Act 1975 (Cth)

APPLICANT: Ms Sidesea

RESPONDENT MOTHER: Ms Gall

OTHER PARTIES: Mr Inverlock

INTERVENORS: Mr and Mrs Bates

INDEPENDENT CHILDREN’S LAWYER: G J Legal Solicitors

FILE NUMBER: SYC 6651 of 2008

DATE DELIVERED: 25 January 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 25 January 2010

REPRESENTATION

APPLICANT MOTHER: No appearance

INTERVENERS:	In person
INDEPENDENT CHILDREN’S LAWYER:	G J Legal Services

Orders

1. The proceedings are adjourned to the Judicial Registrar's Duty List call-over at 9:30 am on 9 March 2010.

2. Leave to the Independent Children's Lawyer to attend by telephone on the adjourned date.

3. That within 14 days from today’s date the Independent Children's Lawyer cause a Minute setting out the orders sought by Mr and Mrs Bates to be served by ordinary pre-paid post on the paternal grandmother Ms Sidease, on Mr Inverlock, on Dr Salisbury, on Ms Bellows, on Mr Salisbury and any other person who the Independent Children's Lawyer is aware is interested in the welfare of the child T born … July 1997.

THE COURT NOTED

1. That the proceedings are listed for the making of final orders in relation to the welfare of the subject child on the adjourned date.

2. If there is no appearance by a party to the proceedings or any other person interested in the child’s welfare on the adjourned date, final orders may be made in terms of the Minute of orders served pursuant to these directions.

THE COURT REQUESTED

1. That a copy of these reasons be published.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6651 of 2008

MS SIDESEA

Applicant

And

MS GALL

Respondent mother

MR AND MRS BATES

Intervenors

And

MR INVERLOCK

Other

REASONS FOR JUDGMENT

1. These are proceedings in relation to the child, T, born in July 1997.  She is 12 and a half years of age.

2. Her mother left Australia (probably for New Zealand), in about 1998 and left the child with the father.  There have been some attempts to locate the mother.  Attempts were made, I think, in 2004 and in relation to related proceedings in early 2009, by publishing a letter in New Zealand newspapers. In any event the mother has taken no meaningful part in these proceedings.

3. I understand that the father was killed in a road accident in 2004.  As I understand it, although the father had other relationships, he was substantially living alone with the child at the time of his death. The child had been enrolled in the applicants' child care centre. I understand that the applicants also had a connection with the father, through their son. The applicants are not relatives of the child.

4. For about three years following the death of the father the child lived with the applicants. I understand that they sought to regularise the living arrangements and were not able to do so, whether that was because of opposition from the family or some other reason. The child went to live with Dr Salisbury, a paternal great aunt and Mr Salisbury, a paternal great uncle; and later, Ms Bellows, a former partner of the paternal grandfather.

5. In early 2009 the child came back to live with the applicants. She has been at a boarding school but living under their care. Orders were made in June 2009 for the child to live with the applicants, for them to have parental responsibility for the child on an interim basis, for the child to spend time with people they agreed to. It was noted that the applicants intended to make a specific arrangement for the child to spend time and visit with her paternal grandmother but not in the presence of Mr Inverlock, at least in the near future.

6. Subsequent to that, a Child and Parent Issues Assessment was prepared in October.  There are affidavits from a number of the people I've mentioned. By a Registrar's direction made on 10 November 2009, the matter has been listed for final orders to be made undefended.

7. The registrar ordered that notice be given to all respondents of the adjourned date and of the consequences of non-appearance. Letters went to some parties, but they were not told of the consequences of not appearing. There is no appearance by or on behalf of anyone today, except for the applicants and the independent child lawyer.

8. The document on which the applicants move is an Initiating Application.  It doesn't appear in the chronology of documents filed on the court record.  It may have been filed in court on 21 April 2009.  It seeks only, by way of final order, that parental responsibility be shared between the applicants and Ms Bellows.

9. The independent child lawyer seeks further orders, including orders that the child live with the applicants, but those orders have not been reduced to writing, let alone served on anyone.  There is no evidence before me that the Initiating Application has been served on anyone.

10. I cannot make orders today because there is no document setting out clearly the orders that would be made, and there is no evidence that that document has been served on the persons who have an interest in the welfare of this child.

11. I indicated to the parties that I may have chanced my arm with the case if we could make contact with the paternal grandmother and ascertain that she was content with the orders sought, even though the orders proposed are slightly different to those in the application.  There is evidence from Ms Bellows that she does not seek to be responsible for any aspect of decision-making about the child. Therefore no harm would be done against her interests, if the order sought in the Initiating Application was not made.

12. There are supportive affidavits from Mr Salisbury, Ms Collins - and I'll come to her in a moment – Ms Bellows and the paternal grandmother.

13. Ms Collins says that she is a non practising solicitor.  She was granted a Power of Attorney by the paternal grandmother as a result of a psychiatric condition suffered by the paternal grandmother. She traces through much of the history of the establishment of a fund through the public trustee for the benefit of the child, the fund arising as a result of the accident giving rise to the death of the father.  She has, by that Power of Attorney, acted for the paternal grandmother and, through her, for the child in pursuing compensation. A fund has been established, with something like $300,000 held for the benefit of the child with the Public Trustee.

14. Ms Collins’ affidavit does not include much evidence in the way of corroboration.  She attaches a Statutory Declaration wherein she purports to act under a Power of Attorney and, as such, indicated her involvement in the management of the affairs of the paternal grandmother's son, the child’s father, and since his death his daughter, T.  That Statutory Declaration says that in 2004 she arranged for payments by QBE to be made for T through a device using a charity. She annexes the death certificate for the father.

15. This is an affidavit that was filed in May 2009.  There has been no complaint about it.  It probably would not past muster in contested proceedings, but it seems to me that I should accept that document.

16. Some mention is made of the partner of the paternal grandmother.  He is variously known as Mr Inverlock or … or … or some combination of those names.  There is evidence that some orders have been made restricting his time with children, who I assume to be his own children, in other proceedings. A decision made by Le Poer Trench J of this registry requires blood testing or urine analysis of Mr Inverlock, before that position would be reviewed. There is reference in various affidavits to controlling and manipulative behaviour by him and some complaint made about him, I think by Ms Bellows. He has not taken an active part in the proceedings, although I think with the paternal grandmother, he was a party. The independent child lawyer had considered making an application that he be expressly restrained from approaching the child.  The evidence wouldn't support such an order. In any event the court could not make such an order without that person being served with the application and the evidence, and so on. That has not been done, and I am not sure that it is a matter, when all of the evidence is in, that would be a matter properly dealt with by this court.

17. Thus the proceedings need to go over.  The purpose of that is to enable a document to be crafted that sets out the orders sought in relation to T, particularly but not necessarily limited to the issue of parental responsibility and the question of where the child lives.  Orders may be sought but they need to be enforceable and for that they need to be clear.  There is no problem with giving the applicants with parental responsibility but, I would have thought, at the minimum orders need to deal with with whom the child should live.

18. There is, as I said, an Issues Assessment which was prepared as a result of a meeting with some of the parties.  The Family Consultant records a problem with the first proposed meeting because Mr Inverlock would not allow the paternal grandmother to be seen separately from himself. That is an unusual thing in itself.  The Family Consultant supports the applicants' proposals and says that what has happened reflects great credit on the applicants in terms of them managing this very difficult situation, including a child who herself can be quite difficult. The applicants have managed contact with the paternal grandmother, notwithstanding she has her own problems. 

19. The Family Consultant says that the paternal grandmother said she had been diagnosed with Bipolar Disorder and referred to a treating Psychiatrist, Dr N.  The paternal grandmother told the consultant that she was heavily medicated.  The Family Consultant recorded that Mr Inverlock presented as antagonistic, defensive and somewhat eccentric.  He spent the joint interview sketching the Family Consultant in a sketch book, but she noted that he was patient and affectionate towards the paternal grandmother.

20. In terms of evidence in relation to the substantive issue, there is evidence of an affidavit of June 2009 and another one of January 2009, supported by some material from the child's school showing her doing reasonably well. The reports record sound progress against criteria in relation to virtually all of her subjects, doing particularly well in terms of language, some PDHPE subjects and lovely comments from the class teacher and the head of the junior school at E School.  The applicants’ say that they have taken the child to have medical tests, being concerned that her medical treatment has not been coordinated over the years. They have investigated, or at least discussed, with the doctors about immunisation; arranged necessary dental treatment. T’s eyesight is good, and the applicants have consulted a Psychiatrist or somebody in that trade in relation to the child. That evidence will probably satisfy the Court as to the child’s circumstances.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan JR

Associate: 

Date:  8 March 2010