Trent & James

[2007] FamCA 7

FAMILY COURT OF AUSTRALIA

TRENT & JAMES [2007] FamCA 7

CHILDREN - With whom a child lives - Child to live with Grandparents - Limited Time Spent Periods

Family Law Act 1975 (Cth)

APPLICANT: Mr Trent

RESPONDENT: Ms James

INTERVENOR: S Trent and G Trent

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 3181 of 2004

DATE DELIVERED: 2 January 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 2 January 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hannon

SOLICITOR FOR THE APPLICANT: John Yianoulatos

COUNSEL FOR THE RESPONDENT: Ms McNamee

SOLICITOR FOR THE RESPONDENT: Victorian Aboriginal Legal Service

COUNSEL FOR THE INTERVENOR: Mr Robinson

SOLICITOR FOR THE INTERVENOR: Eales & Mackenzie

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms Dowler

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Forster & Associates

Orders

1. THAT all previous parenting Orders in relation to the child K born in May 1996 be discharged.

1. THAT Order 7 of the Orders made 17 August 2006 together with all other injunctive Orders in these proceedings be discharged.

1. THAT the Paternal Grandparents have equal shared parental responsibility between themselves for K.

1. THAT K live with the Paternal Grandparents and they have the sole responsibility for the day to day decision making for K.

1. THAT the Applicant Father spend time and communicate with K as follows:-

a.       each alternate weekend from after school Friday until commencement of school Monday;

b.      one-half of the school holidays or as otherwise agreed between the Applicant Father and Paternal Grandparents;

c.      from 3.00 p.m. Christmas Eve 2007 until 3.00 p.m. Christmas Day 2007 and each alternate year thereafter;

d.      from 3.00 p.m. Christmas Day 2008 until 3.00 p.m. Boxing Day and each alternate year thereafter;

e.      from 10.00 a.m. until 6.00 p.m. Father’s Day in each year;

f.       for three (3) hours on the Applicant Father’s Birthday (whenever that day is) and K’s birthday (whenever that day is) at times to be agreed between the Applicant Father and Paternal Grandparents;

g.      telephone communication at times agreed between the Applicant Father and Paternal Grandparents;

h.      and otherwise as agreed between the Applicant Father and Paternal Grandparents.

1. For the purposes of time spent with K pursuant to Order 5 (i) herein, any overnight time take place at the residence of the Intervener Paternal Grandparents or otherwise with either of them present or in substantial attendance.

1. THAT the Respondent Mother spend time and communicate with K as follows:

1. Subject at all times to the injunction herein that the Respondent Mother, her servants and/or her agents are restrained from causing or permitting Mr S  from having any form of contact with or being in the presence of or in the same residence as K;

1. (a)         on the first weekend in each four (4) week cycle (not being a weekend the Applicant Father spends time with K pursuant to Order 5 (i) (a) herein) from 8.00 p.m. Friday until 5.00 p.m. Sunday with the Paternal Grandparents to deliver K to and collect K from the Mother’s sisters residence in B or such other places and times as are agreed between the Respondent Mother and Paternal Grandparents;

(b)      telephone communication each Monday and Thursday between 6.30 p.m. and 7.00 p.m. with the Respondent Mother to telephone the Paternal Grandparent’s home;

(c)         and otherwise as agreed between the Respondent Mother and Paternal Grandparents.

1. THAT each of the Applicant Father and Respondent Mother be and are herby restrained by injunction from:

(a)         using or being under the influence of illicit substances or any non – prescribed medication twenty-four (24) hours prior to any time spent and during any time spent with K; and

(b)         consuming alcohol twenty-four (24) hours prior to any time spent and during any time spent with K.

1. THAT each of the Applicant Father and Respondent Mother be and are hereby restrained by injunction from knowingly bringing K into contact with any person(s): 

(a)         using or being under the influence of illicit substances or any non – prescribed medication; and

(b)         consuming alcohol (save for the Paternal Grandparents or with the Paternal Grandparent’s express permission).

1. THAT the Paternal Grandparents contact the Victorian Aboriginal Childcare Association of 180 Nicholson Street, Brunswick to arrange for counselling for K as deemed appropriate.

1. THAT the solicitors for the Respondent Mother serve a sealed copy of these orders and the extempore Judgment of 2 January 2007 upon the Respondent Mother forthwith and file an Affidavit of Service as soon as possible thereafter.

1. THAT each of the Applicant Father and Respondent Mother attend and successfully complete a Parenting Course nominated by the Independent Child Lawyer and each of the Applicant Father and the Respondent Mother file a certificate of completion of such course with this Court and with the Independent Child Lawyer.

1. THAT all subpoenaed material produced to this court in these proceedings be forthwith returned by the subpoenaes clerk to the person or organisation of origin identified on the subpoena.

1. THAT the order for the video–link transmission is discharged forthwith.  

1. THAT the appointment of the Independent Child Lawyer be otherwise discharged with no order as to costs.

1. PURSUANT to s.65DA (2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

1. THAT in all other respects all extant applications both interim and final in this matter be otherwise dismissed.

1. THAT the matter otherwise be removed from the Active Pending Cases List maintained by the Court with liberty reserved to apply by either party.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules, this matter reasonably required the attendance of Counsel for all parties.

IT IS NOTED:

1. THAT the Applicant Father, Paternal Grandparents and the Independent Child Lawyer have proposed and agreed to these orders and have asked the Court to make them without the consent of the Respondent Mother.

2. THAT the Respondent Mother was represented by Counsel and solicitor and did not appear. The matter was stood down to 2.15 p.m. to enable the Respondent Mother to be contacted but that was without success.

3. THAT the Victorian Aboriginal Childcare Association has advised the Respondent Mother’s practitioner that Counselling will be at no charge.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3181 of 2004

Mr Trent

Applicant

And

Ms James

Respondent

REASONS FOR JUDGMENT

1. The matter of T and J and Others is before the court in the defended hearing list.  The applicant is the father, for whom Mr Hannan of counsel appears.  The respondent mother is represented is Ms McNamee of counsel and instructed by Mr Dennis Barry, solicitor, on behalf of the Victorian Aboriginal Legal Service.  Mr Robinson appears as counsel for the paternal grandparents, who have previously been granted leave to intervene in the proceedings.  Ms Dowler of counsel appears for the independent children's lawyer, instructed by Forster and Associates, Solicitors.  There is no appearance by or on behalf of the Department of Human Services, who have ceased any interest or involvement in these proceedings.

2. The one child is K, born in May 1996, now 10 and a half years of age.  K currently lives, pursuant to interim orders of the court, with the paternal grandparents.  There is an arrangement in place whereby he spends time, when available, with his mother or father. 

3. The mother did not appear at court.  It seems as if she was in Melbourne prior to Christmas but then returned to the East Gippsland district, where she now resides in circumstances that are largely unknown to her legal practitioners.  There have been efforts made over the last few days, of which I was informed, to contact the mother, but without any success.  From what her counsel said, it is clear that she had some knowledge of the commencement of the case this day.  In any event, because she was in court when previous orders were made, she then should have known of the hearing date which had been extended from December until this day.  I am wholly satisfied that the mother knows of the hearing this day and has simply declined to attend, showing a complete lack of interest in or understanding of these proceedings. 

4. Of more concern is the fact that in documents subpoenaed to the court or otherwise by way of matters raised by counsel it is clear that her partner has been involved in further confrontation and legal proceedings.  The court is aware that he is currently on bail and is charged with numerous offences arising out of an incident in early October 2006 in B.  Those proceedings have recently been further adjourned and the court is advised that late January 2007 is the day for the further hearing of those criminal charges. 

5. I proceed on the basis that the mother entirely knows of the facts and circumstances surrounding these charges.  This is of real importance in this case because of current injunctions which restrain K from spending time with Mr S.  Part of the mother's case and those of her witnesses was built upon the foundation that Mr S had reformed, that they were looking to re‑start their life together and/or marry. 

6. As I currently understand the circumstances, the outstanding matters are serious and clearly raise very considerable matters when considering the best interests and future upbringing of K.  Every opportunity was given to counsel for the mother for her client to be contacted, that was wholly unsuccessful and indeed the court was advised that not only was she not answering her mobile telephone but that it was physically turned off.   I proceed therefore on the basis that the mother had proper knowledge of the proceedings and it is her election to return to East Gippsland and not involve herself in the hearing this day, for which she had been granted, at least on a restricted basis, legal aid through the Aboriginal Legal Aid Service. 

7. The father is presently in gaol.  He is to be released in late February 2007 or thereabouts, subject to his continued good behaviour.  He does not seek that K live with him.  He supports his parents and their application, though the reality is he will have the opportunity to spend time with his son because of the circumstances of where K will hereafter live. 

8. There was initially an order for a video-link hearing, but, in view of the non‑appearance of the mother and the agreed proposal by counsel for all other parties as to orders that should be pronounced this day, that video‑link has not been established.  The husband's counsel has had the opportunity through the services available by the court to speak to his client and has full and appropriate instructions confirming that course of action. 

9. Insofar as consent orders of those three parties are to be made by the court, although the orders by themselves will not be consent orders, the father, I accept, has wholly understood and consented to the orders which have been both faxed to the prison and read and discussed with him by his counsel.  The orders that I make envisage the dismissal of all past interim orders of and relating to K and injunctions.  It means a completely fresh set of orders dealing with all ongoing issues.

10. The matter that I have discussed at length with all counsel and upon which instructions have been sought is what particular order should be made pursuant to section 61DA of the Family Law Act 1975 (as amended). That order provides that when making a parenting order in relation to a child the court must apply a presumption that it is in the best interests of the child for his parents to have equal shared parental responsibility. Subsection (2) thereof provides the circumstances where that presumption does not apply, and one of the particular grounds is family violence or if that child has been abused when a member of the home of one or both of the parents.

11. In the circumstances of this case and given the untested allegations of and concerning K, I could not and do not find that it is in his best interests to have his mother involved with a parenting responsibility.  The background of this case speaks for itself:  the ongoing allegations, the number of appearances in court and the issues in other courts.  I am aware that the entire criminal records of Mr S and the father are at court.  I am aware of the periods of imprisonment that previously or currently are being served.  K needs a better upbringing and more principle and leadership than that which either his father or the mother and Mr S can offer to him.

12. I have particularly had regard to the various issues referred to in section 65DAA and otherwise the requirements of the Act in relation to equal shared parental responsibility.  What I propose to do in this case is to give to the intervening paternal grandparents that equal shared parental responsibility between themselves to take charge of the direction of K's life.  I note that the father consents, through his counsel, to that proposed order.  Accordingly then, the mother and the father will not be involved in the parental upbringing of K, though I will provide orders whereby they do spend time with K, if circumstances are appropriate and K's interest is protected. 

13. As between counsel for each of the father, the intervening grandparents and the independent children's lawyer, minutes of orders by consent have been produced to the court which provide for a period of time for the father to spend with K.  They are consented to by all parties.  Separately, there is an order for the mother to spend time with and communicate with K, but that is intended and I will specifically order that it be subjected to a restraint that will prohibit Mr S from having any form of contact with or indeed being in the presence of K.

14. The mother will have to understand that if she wants time with K it is to be done in circumstances that exclude Mr S and which provide a safe and proper facility and circumstance for K.  If in those circumstances she elects not to spend time with K, that is her choice and she will be poorer for that lack of contact with her child.  I am also acutely aware of what I regarded to be the centre point of the mother's case - that is, she has two other children who have grown up with K and those two children, S and T, now aged approximately eight years and seven years, will also suffer from the lack of relationship with their elder stepbrother.  That, however, is the reality of this case, and those two children remain living with their natural parents.

15. I have, however, considered that issue along with each of the other issues that require the court to make a determination of what is in the best interests of K.  In particular in that regard I refer to and have specific regard of section 60CA and section 60CC both as to the primary considerations and the additional considerations. 

16. One matter that must be recorded in this case is that pursuant to subparagraph (h) the court must have regard to the child's right to enjoy his Aboriginal heritage and culture, and the relevance of that in determining what is in the best interests of K is a matter both of concern and which I have raised with counsel generally.  I am not in a position to further develop this issue, because of the lack of interest and involvement of the mother, but it is merely one factor, as an additional and not a primary factor, to which I have had general regard. 

17. I will make orders in relation to the circumstances of time to be spent, including travelling, and will generally provide additional time to the mother, if agreed, with the paternal grandparents.  There is a reality in this case and the paternal grandparents are in court to hear and understand that K does need to know both of his parents, and, as he grows up, life will be much easier for everyone if K does have some availability of his father and his mother. 

18. The reality is that the father is likely to be available.  There will be a real effort required of the paternal grandparents to keep a line of communication open with the mother, but I require them to do that.  I will not make a specific order, but they are listening to what I say and I charge them with the responsibility, even if at great personal effort to themselves, to ensure that K has some level of communication and contact with his natural mother, however limited it may be by her own choice.

19. Otherwise, there will be restraining orders in relation to alcohol and illicit substances in the form that I have discussed with counsel and which will be carefully redrafted in a practical sense.  I highlight that those orders are primarily directed at the mother and father and other relevant adults outside of the paternal grandparents.  Additionally, I will require the parents, but particularly the father, to undergo a parenting course and to file appropriate certificates of completion with the court and with the independent children's lawyer.

20. I will hereafter discharge the independent children's lawyer from any involvement in the case, subject to their enrolling the father in the appropriate parental course.  One matter of agreement is that K is to have access to counselling through the Victorian Aboriginal Child Care Association in Brunswick and, as a free service, that is to be organised by the paternal grandparents or their solicitor.  Likewise, it would be helpful if information as to the completion of that course can hereafter be filed with the court. 

21. Otherwise, I intend these orders to be final.  All proceedings, both interim and final, will be dismissed and the matters are out of any and all court lists.  I will have the facts sheet annexed to the court file.  I will certify for counsel for all parties.  I will require the specific notation as to the mother's non‑appearance to be endorsed on the orders.  Orders be engrossed by the solicitor for the father.

22. Finally, I will have these rather brief extempore reasons for judgment transcribed, placed upon the court file and made available to all parties.  I intend that a copy go to both the father and the mother.  Service of the sealed order upon the mother and of these brief reasons will be required of her solicitor.

23. Again it would be helpful if Mr Barry would file a notice of service of those documents upon the mother so it is absolutely clear they were received by her.  All orders in relation to the video-link transmission are to be discharged.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: 
Date: 15 January 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as TRENT & JAMES