Wentworth and Shelton and Ors

[2013] FCCA 1091

FEDERAL CIRCUIT COURT OF AUSTRALIA

WENTWORTH & SHELTON & ORS [2013] FCCA 1091

Catchwords:
FAMILY LAW — Whether interim orders for time with father in prison and with grandparents be made.

Legislation:  

Family Law Act 1975 (Cth), ss.60B, 60CA, 62, 65DA(2)

Applicant: MR WENTWORTH

First Respondent: MS SHELTON

Second Respondent: MR MENDELL

Third Respondent: MS MENDELL

File Number: MLC 357 of 2009

Judgment of: Judge Phipps

Hearing date: 15 July 2013

Date of Last Submission: 15 July 2013

Delivered at: Dandenong

Delivered on: 15 July 2013

REPRESENTATION

The Applicant:	Appearing on their own behalf
Counsel for the First Respondent:	Mr Pinner

Solicitors for the First Respondent: Tyler Tipping & Woods

Counsel for the Second 

Respondent:

Ms Watson

Solicitors for the Second Respondent: Meier Denison Guymer Pty Ltd

The Third Respondent: Appearing on their own behalf

Counsel for the Independent Children’s Lawyer: Mr Lovering

Solicitors for the Independent Children’s Lawyer: Julie Taylor

ORDERS

1. That the matter be adjourned for mention on 16 December 2013 at 10.00am in the Federal Circuit Court of Australia at Dandenong.

2. Until further order the children X born (omitted) 2005, Y born (omitted) 2008, Z born (omitted) 2010 and W born (omitted) 2011 (“the children”) live with the mother.

3. Until further order the children spend time and communicate with Ms Mendell as follows:

   (a)From 10.00am until 5.00pm on 28 July 2013, 25 August 2013 and 22 September 2013;

   (b)From 10.00am Saturday until 4.00pm Sunday commencing 19 October 2013 and every fourth weekend thereafter; and

   (c)Other times as agreed.

4. That all changeover pursuant to these Orders take place at McDonalds Restaurant in (omitted).

5. That Ms Mendell be permitted to take the children to visit Mr Mendell in prison and also to phone Mr Mendell in prison, but not to take the children on two consecutive days.

6. That Ms Shelton and Mr Wentworth sign all documents and do all things necessary in order for the children and Y to spend time with Mr Wentworth at (omitted), and the parties shall abide by all lawful directions of any authorised Officer of (omitted).

7. That Mr Wentworth be permitted to send cards and letters to X and Y via Ms Shelton’s solicitor, Penelope Scheffer at Tyler Tipping and Wood and Ms Scheffer shall ensure such cards and letters are passed onto X and Y.

8. That Mr Wentworth shall not bring the children into contact with his father (Mr Wentworth Senior).

9. The Independent Children’s Lawyer be permitted to apply for funding on behalf of Mr Wentworth in relation to getting funding for Mr Wentworth to be pyschologically assessed by Dr A.

10. That Dr B and Dr A be given a copy of the family report dated 5 June 2013 by the Independent Children’s Lawyer and/or the solicitors for the mother.

11. That the parties are hereby restrained from denigrating the other parties in the presence or hearing of the children or permitting others to do so.

AND THE COURT NOTES:

A.Whilst Mr Mendell consents to Order 4 on an interim basis, he will be seeking on a final basis that Ms Mendell be permitted to bring the children to visit him as she sees fit.

B.Pursuant to ss.65DA(2) and 62 of the Family Law Act1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT DANDENONG

MLC 357 of 2009

MR WENTWORTH

Applicant

And

MS SHELTON

First Respondent

And

MR MENDELL

Second Respondent

And

MS MENDELL

Third Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This case is here for interim hearing.  It involves four children.  The first respondent, Ms Shelton, is the mother of all four children.  The applicant, Mr Wentworth, is the father of the older two children.  Mr Mendell, who is the second respondent, is the father of the younger two children and the third respondent, Ms Mendell is Mr Mendell’s mother, so the paternal grandmother of the younger two children, but a person who has had a significant amount to do with the older two children, as has Mr Mendell.

2. The children are X, born (omitted) 2005, Y born (omitted) 2008.  Their father is Mr Wentworth.  Then Z, born (omitted) 2010, and W, born (omitted) 2011.  Their father is Mr Mendell.

3. Interim orders are proposed by, and supported by all parties except for Ms Shelton, the mother.  There is an independent children’s lawyer who supports the proposal.  Mr Wentworth and Ms Mendell are self-represented.  The other parties are represented, Mr Pinner for the mother, Ms Watson for Mr Mendell and Mr Lovering for the Independent Children’s Lawyer.

4. The orders which are proposed and supported by all parties, except for the mother, are:

   1.That, until further order, all four children live with the     mother.

   2.That the children spend time and communicate with the   grandmother, with Ms Mendell as follows – from 10.00am to 5.00pm on 28 July 2013, 25 August 2013 and 22      September 2013, and from 10.00am Saturday until 4.00pm Sunday commencing 19 October 2013 and every fourth   weekend thereafter and other times as agreed.

   3.That all changeovers pursuant to these orders take place at        McDonald’s Restaurant in (omitted).

   4.That Ms Mendell be permitted to take the children to visit Mr Mendell in prison and also to phone Mr Mendell in prison but not to take the children on two consecutive days.

   5.That Ms Shelton and Mr Wentworth sign all documents and do all things necessary in order for the children, X and Y, spend to spend time with Mr Wentworth at (omitted) and the parties shall abide by all lawful direction of any authorised officer at (omitted).

   6.That Mr Wentworth be permitted to send cards and letters to   X and Y via Ms Shelton’s solicitor, Penelope Scheffer, Tyler Tipping and Woods and Ms Scheffer shall ensure such cards and letters are passed on to X and Y.

   7.That Mr Wentworth shall not bring the children at any time     into contact with his Father, Mr Wentworth Senior.

   8.That the Independent Children’s Lawyer be permitted to apply for funding on behalf of Mr Wentworth in relation to    getting funding for Mr Wentworth to be psychiatrically assessed by Dr A.

   9.That Dr B and Dr A be given a copy of the family report dated 5 June 2013 by the Independent Children’s Lawyer and/or the solicitor for the mother.

   10.That the parties are restrained from denigrating the other   parties in the presence or hearing of the children or permitting others to do so.

5. There is a large file of documents but the history is sufficiently set out in the family report.  The family report is dated 5 June 2013, prepared by Ms O. 

6. Mr Wentworth was born on (omitted) 1982 and Ms Shelton on (omitted) 1986.  They were in a relationship from 2004 until late 2008.

7. Mr Mendell was born on (omitted) 1986 and commenced a relationship with Ms Shelton in 2009.  He has been in prison since March 2011.  It would seem he was arrested, did not receive bail and was subsequently convicted.  He is in prison until 2015 for what is described in the family report as home invasion and assaults against the occupants, so it would seem he has aggravated burglary, assault and possibly kidnapping charges against him.

8. Ms Shelton was charged with aggravated burglary. She was placed on a community based order.  There were three children at that stage.  W had not been born and Ms Mendell, the grandmother and her husband cared for the three children while Ms Shelton was in prison. Then Ms Shelton and the children lived with the grandparents for a further six months. During that time Ms Shelton took the three children to visit Mr Mendell in prison.

9. The family report shows that Mr Mendell regards himself as having been the father figure for the two older children, for X and Y while they were together and Ms Mendell and Mr Mendell see themselves as having been grandparent figures for the two older children since then.

10. The children had not seen the grandparents until I made a consent order earlier this year which provided for Z and W to spend time with the grandmother, which is effectively with both grandparents, on three dates from 10.00am to 1.00pm on 21 April 2013, 5 May and 18 May 2013 which have all taken place. According to the grandmother they have all gone well. 

11. Dr A is a psychiatrist who has undertaken a psychiatric assessment on the mother, on Ms Shelton, which will be available this Friday according to the information the Independent Children’s Lawyer has.  There was an order made for Dr A to prepare a report on Mr Wentworth, which was subject to Victoria Legal Aid approving funding.  Mr Wentworth no longer has legal aid and so hence the proposal for an order that the Independent Children’s Lawyer request that funding.

12. Dr B is a psychologist who has seen X on referral from a paediatrician.  The mother’s position is that the times with the grandparents and any time seeing Mr Mendell in prison should not happen until Dr A’s report has been seen. Then she proposes that Dr B is the one who should tell X that she will be seeing Mr Mendell in prison.

13. Ms Mendell’s application for final orders is that all four children should live with her and her reasons for doing that appear, from what I have already said.  That is something for the future, if it is to be pursued and determined at all.

14. What is proposed as orders is in line with the recommendations of Ms O. If one looks at best interest provisions, this is not a matter which requires consideration of presumption of equal shared parental responsibility, although I should add one other piece of background. 

15. Therefore, going back to the provisions of the Family Law Act 1975 (Cth), it is a question of looking at the best interests of the children. That is the paramount consideration set down by s.60CA. The principles and objects of the Family Law Act 1975 (Cth) set out in the parenting provisions in s.60B include a statement that the children are entitled to a relationship with parents and with other significant people in their lives, including grandparents. Grandparents are mentioned specifically.

16. In terms of best interest considerations, there are, as far as I can see here, no protective concerns.  The proposal is for Mr Wentworth to see his two older children at a contact centre and any time with Mr Mendell would be at the visiting facilities at the prison, where clearly the children would be in a protected environment, protected in the sense from any risk that Mr Mendell’s background might present if there was such a risk.

17. So far as a meaningful relationship with parents is concerned, the first of the primary considerations, clearly if some relationship can be maintained between Mr Mendell and Z and W, that is desirable.  Mr Mendell, of course, has seen little of W, because she was born after he was incarcerated. 

18. Therefore of other consideration, the first is a consideration concerning the views of the children.

19. From what she said to Ms O it is a little difficult to find any clear evidence about what X wants. What is clear is that she did not express a desire to spend any time with Mr Mendell.  It is clear that the three older children have had a lot to do with Ms Mendell for six months.  Indeed she would appear to have done as much as their mother for their day-to-day care, at least during that time.  Ms Mendell also says that when Ms Shelton decided to move from (omitted) to the (omitted) area she was helped by Ms Mendell. 

20. It is desirable that the children renew and maintain their relationship with a grandparent, either a step-grandparent or a biological grandparent who has had such a significant amount to do with their lives.  The mother acknowledges that, it is just whether it should be to the extent that is proposed and whether it should happen straight away.  The psychiatric report about the mother does not seem to have any bearing on the children’s relationship with Ms Mendell and there does not, as far as I can pick up from material, be any apprehension by Ms Shelton now.  She was opposing any time but now accepts there should be some time but there does not appear to be such an apprehension by Ms Shelton about time with Ms Mendell that there might be anything endangering the mother’s relationship with the children because of her apprehension about their time with their grandparents. 

21. So weighing the psychiatric report it would seem to have little bearing on the issue at the moment.  One reason for making the order now is that it means that the parties will not have yet another interim hearing.  That has cost implications, of course, and inconvenience implications for everyone but it is also a best-interests consideration in the conduct of the proceedings because no matter how much parents and others attempt to shield children from court proceedings, their mother, is away from their home.  They would either be aware she is at court or aware that something involving them is going on so it is undesirable to have, in the children’s best interests, more happening. 

22. As far as the children seeing their father and step-father is concerned, that was happening until about three-quarters of the way through last year.  As best as it is possible to make any assessment of why that finished, it would seem that Ms Shelton was under some pressure from her family. It was not because there was any adverse effect on the children from seeing their father in prison.  How children can have a relationship with a parent who is in prison is a difficult issue but here the children have been seeing their father in prison so they are aware of the circumstances. 

23. It appears the father is in a medium security prison at most. It is probably not such a formidable place as might be for the children to attend.  In terms of the children’s relationship with their father and their step-father there seem to be positives in them seeing him.  That would maintain their relationship.  There are not any risk factors. 

24. As far as involving Dr B, the difficulty I see with that is Dr B’s treatment of X is therapeutic.  When Ms O spoke to him he was not aware of the family law proceedings.  He may not wish to be involved at all with the family law proceedings.  Clearly he needs to know about them and it would assist him to have the family report but he may consider what is proposed is inappropriate.  However, if he is aware that there is an order that X should see her father in prison, in his professional judgment he may determine that he should discuss it with X. That is a matter for him.  The court cannot direct him to and I think it is undesirable that there should be some condition placed on the order. 

25. This is an interim hearing and it is desirable that what is recommended in the interests of the children should happen sooner rather than later.  I am persuaded that it is in the best interests of the children that all four of them should be spending time together with their grandparents and step-grandparents and that that should be overnight time.  There is also a practical consideration because the grandparents are in (omitted), the mother is in (omitted) at an undisclosed address.

26. The changeover place which is proposed by the independent children’s lawyer and Ms Mendell is (omitted). 

27. It is agreed that that is 127 kilometres from (omitted) and 182 kilometres from where the mother lives so in kilometres it is not equal.  (omitted) to (omitted) is through the city of Melbourne, admittedly across freeways but freeways which notoriously can become congested at any time, not just in peak periods.  Travelling from anywhere in (omitted) that distance from (omitted) is travelling on either country roads, highways or freeway so in terms of time (omitted) probably is about half-way. I will include (omitted) as the place for changeover.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date:  24 October 2013