Weston and Hanson and Ors

[2014] FamCA 1114

FAMILY COURT OF AUSTRALIA

WESTON & HANSON AND ORS [2014] FamCA 1114

FAMILY LAW – CHILDREN – Interim parenting – consideration of the best interests of the children – orders made to reflect the current parenting arrangements.  

Family Law Act 1975 (Cth)

APPLICANT: Ms Weston

FIRST RESPONDENT: Ms Hanson

SECOND RESPONDENT: Mr Gerard

FOURTH RESPONDENT: Ms Gerard

INDEPENDENT CHILDREN’S LAWYER: Mr Finn

FILE NUMBER: MLC 8633 of 2012

DATE DELIVERED: 1 December 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 1 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Sevdalis

SOLICITOR FOR THE APPLICANT: Aboriginal Family Violence Prevention & Legal Service

THE FIRST RESPONDENT: No appearance

THE SECOND RESPONDENT: No appearance

THE FOURTH RESPONDENT: In person via telephone

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Finn
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	McKean Park Lawyers

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The orders of 8 May 2014 be and are hereby suspended.

2. The children B born … 2001 and C born … 2010 (“the children”) live with the applicant mother.

3. The children spend time with the fourth respondent paternal grandmother not less than one weekend per calendar month as agreed and failing agreement to occur 5.00 pm Friday to 5.00 pm Sunday every fourth weekend (noting that the children last spent time with the respondent on the previous weekend of 28 November 2014) on the condition that the paternal grandmother, her servants and agents be and are hereby restrained from bringing B and/or C into contact with the second respondent father, Mr Gerard.

4. For the purposes of B and/or C spending time with the paternal grandmother pursuant to paragraph 3 herein, the paternal grandmother shall collect the children from the applicant mother’s residence and the applicant mother shall collect the children from the BP Service Station in Town E, or as otherwise agreed between the applicant mother and the paternal grandmother.

5. The children’s time with the second respondent father and the first respondent maternal grandmother be reserved.

6. The mother be restrained by injunction from ingesting, consuming or using or otherwise being under the influence of alcohol to excess and/or any illegal drugs at all times when B and/or C are in her care or forty-eight (48) hours prior to either of them coming into her care.

7. The mother continue to accept the services of Ms G and/or her nominee from J Organisation and shall otherwise do all acts and things as recommended by the support worker or her nominee.

8. The mother and father undertake supervised drug screens randomly within twenty-four (24) hours of being so requested by the Independent Children’s Lawyer.

9. If the mother or father produce a screen apart from “Nil” or “Not detected”, save where a medical certificate is produced from a general medical practitioner, the Independent Children’s Lawyer have liberty to apply on short notice.

IT IS FURTHER ORDERED THAT

10. The maternal grandmother, the paternal grandmother and the father file and serve a Notice of Address for Service within 14 days.

11. As soon as practicable the Independent Children’s Lawyer forward by pre-paid post a sealed copy of this order to the following:

a)   the maternal grandmother c/- D Street, Suburb U; and

b)     the paternal grandmother at A Street, Town E, with a covering letter from the Independent Children’s Lawyer requesting that the order be brought to the attention of the father.

12.

All extant applications be adjourned for mention before Justice Macmillan at

9.00 am on 13 February 2015 and all parties shall attend or be represented on that date.

13. In the event that the respondents do not attend or are not represented at the mention of this matter on 13 February 2015 the mother have liberty to apply to proceed on an undefended basis.

AND THE COURT NOTES THAT

A.     The maternal grandmother ceased as a primary caregiver in April 2014 when the mother commenced living with the maternal grandmother and children.

B.     It is suspected that the maternal grandmother is suffering from a psychiatric illness.

C.     The maternal grandmother left her home in August 2014 and the mother has been the sole primary caregiver since that time.

D.    The father was released from prison in October 2014 and has been charged with theft and trespass with intent to steal and his current whereabouts are unknown.

E.     The mother intends to undertake a supervised drug screen by 5.00 pm on 2 December 2014.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Weston & Hanson and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8633 of 2012

Ms Weston

Applicant

And

Ms Hanson

First Respondent

And

Mr Gerard

Second Respondent

And

Ms Gerard

Fourth Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter is listed for hearing before me today as a first day of hearing.  There have been proceedings on foot for some time, however on 8 May 2014 all previous orders were discharged and interim orders were made by consent with respect to the two children who are the subject of these proceedings, namely B born in 2001 and C born in 2010.

2. Those orders provided that the children live with the maternal grandmother, that the mother live with the maternal grandmother and that the children spend time with the mother as agreed between the mother and the maternal grandmother subject to the maternal grandmother being in substantial attendance except on specified occasions – which included the mother delivering the children to and from school, taking them to medical and dental appointments and taking them shopping in her local area.

3. These proceedings involve the mother, the maternal grandmother, the father of the child C and the paternal grandmother of the child C.  At the hearing before me today, the mother appeared and was represented by counsel.  The paternal grandmother appeared by telephone and the Independent Children’s Lawyer also appeared.  There was no appearance by either the maternal grandmother or C’s father.  The child B’s father is no longer a party to these proceedings.

4. Since the orders were made in May, the mother has resumed the primary care of the children with the maternal grandmother “taking a backseat”.  I am also told that the maternal grandmother left the premises in which she was living with the mother and the children in Suburb P, leaving the mother and the children in the property at Suburb P and the mother caring for the children on her own.

5. The mother has now taken over the lease on that property, which is public housing, and proposes to continue living there with the children.  Although the mother says she does not know the whereabouts of the maternal grandmother, the maternal grandmother forwarded a statutory declaration to the Independent Children’s Lawyer in which she said she is living at D Street, Suburb U.  I am told by counsel for the mother that it is the mother’s belief that the maternal grandmother has a psychiatric condition.

6. The child C’s father was released from prison in October this year. The mother and C’s father initially recommenced their relationship. However, as recently as a week ago, they separated and I am told by counsel for the mother that C’s father stole her motor vehicle and that he is now living with someone else. 

7. I do note that none of this evidence is presently on affidavit.  However, given that this is the first day of hearing and normally one might not have expected substantive orders to be made, that is, perhaps, not surprising, particularly given that some of these events are quite recent.

8. Pursuant to the orders made on 8 May 2014, the children spend time with the paternal grandmother not less than one weekend per calendar month as agreed and failing agreement from 5.00 pm Friday until 5.00 pm Sunday every fourth weekend.  Those orders also provided that C’s father be permitted to communicate with the children on one occasion during the periods of time in which the children were to be in the care of the paternal grandmother by direct arrangement with the paternal grandmother.

9. The children have been spending time with the paternal grandmother pursuant to these orders and it is proposed that she continue to do so.  However, the order that I am asked to make today does make it a condition of those orders that the paternal grandmother not bring the children into contact with C’s father. 

10. When making parenting orders, the paramount consideration is the best interests of the child or children the subject of that order.  In determining what is in that child or children’s best interests, the Court must consider both the primary and additional considerations in s 60CC(2) and (3) of the Family Law Act 1975 (Cth) (“the Act”) and the analysis of these statutory considerations of what is in the best interests of the child or children in question in the particular circumstance of the case must be made in a way that is consistent with the objects and principles of that part of the Act.

11. In this case, I am being asked to make orders suspending the previous parenting orders and putting in place orders that the children live with the mother and, in doing so, removing any requirement that the maternal grandmother be in substantial attendance.

12. The orders I am being asked to make would appear to reflect what is actually happening.  Notwithstanding that neither the maternal grandmother nor C’s father have had an opportunity to be heard, if they wish to be heard in relation to these matters, I am satisfied that it is in the children’s best interests that at least on an interim basis orders be made which make provision for their care. 

13. There is no affidavit evidence as I have already indicated and, even if there had been, no opportunity to test that evidence.  Acting in the children’s best interests, I must act in a cautionary manner and I note that the orders that are proposed provide that the mother not consume or use or otherwise be under the influence of alcohol to excess or use any illegal drugs at times when the children are in her care or 48 hours prior to either of them coming into her care and that provision is made for both the father and the mother to undertake supervised drug screens at the request of the Independent Children’s Lawyer.

14. I am satisfied that, at least in the short term, these provisions are necessary and although C’s father did not take part in the proceedings this day, it is appropriate that if he is requested to do so by the Independent Children’s Lawyer that he undertake a random drug screen.

15. The matter will be listed for mention before me on 13 February 2015 and these orders are intended to remain in force until that date.  They will, hopefully, provide the children with some stability and certainty in circumstances where there has obviously been a significant change in the arrangements made for their care.  In all the circumstances, I am satisfied that the orders proposed on an interim basis are in their best interests. 

16. As neither the maternal grandmother nor C’s father have had an opportunity to be heard in relation to the proposed orders – and noting that both the mother and the paternal grandmother at least consent to these orders – it is appropriate that they be made as orders of the Court and I propose to make them on that basis. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 1 December 2014.

Associate: 

Date:  11 December 2014