White and Green and Ors (No. 3)

[2009] FamCA 374

FAMILY COURT OF AUSTRALIA

WHITE & GREEN AND ORS (NO. 3) [2009] FamCA 374

FAMILY LAW – CHILDREN – With whom a child spends time – Interim

Family Law Act 1975 (Cth)

APPLICANT: Mrs White (Snr) as Case Guardian for Ms White

RESPONDENT: Mr Green

SECOND AND THIRD RESPONDENTS Mr and Mrs Green (Snr)

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 9805 of 2008

DATE DELIVERED: 24 April 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 24 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kirkham QC with Mr Sweeney

SOLICITOR FOR THE APPLICANT: Gadens Lawyers

COUNSEL FOR THE RESPONDENT

AND SECOND AND THIRD

RESPONDENTS:

Mr St John SC

SOLICITOR FOR THE RESPONDENT

AND 2^ND AND 3^RD RESPONDENTS:

MDP McDonald Partners

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER Ms Dowler

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER Victoria Legal Aid

Orders

1. The hearing of the extant application for interim parenting orders be adjourned to the Senior Registrar’s list of cases at 9.45am on 11 June 2009.

2. That each party file and serve any further affidavit relied upon for the said hearing no later than seven days prior to the hearing.

3. That until further order the child … born … March 2008 spend time with the husband as follows:

   (a)    On 25 April 2009 and 26 April 2009 between the hours of 2.00pm and 5.00pm each day;

   (b)    For two weeks commencing 27 April on each Monday, Wednesday and Friday for two hours each day to be agreed or in the absence of agreement, from 2.00pm to 4.00pm;

   (c)    For a further two weeks each Monday, Wednesday and Friday for three hours on each day to be agreed or in the absence of agreement, from 2.00pm to 5.00pm;

   (d)    Thereafter, each Monday, Wednesday and Friday for four hours on each day to be agreed or in the absence of agreement, from 1.00pm to 4.00pm.

4. That for the purposes of paragraph 3, the maternal grandmother Mrs White (Snr) deliver up the child at the commencement of time and collect the child at the conclusion of time to and from:

   (a)    the paternal grandmother Mrs Green (Snr) for so long as she shall remain in Victoria;

   (b)    the appointed supervisor thereafter

   and that the parties ensure no other person is present at the changeover, which shall occur at the Pancake Parlour at P

5. That for the purposes of paragraph 3(b) hereof, the maternal grandmother remain involved in the care and supervision of the child until the child is comfortable and settled in the care of any appointed supervisor as determined by the supervisor.

6. That the time referred to in paragraph 3(b) occur in the area of P.

7. That the time referred to in paragraph 3(b)-(d) hereof be supervised at all relevant times by a supervisor nominated by the Independent Children’s Lawyer and if any cost is associated with that supervision, it should be met by the husband.

8. That any nominated supervisor be provided with a copy of any reasons for judgment delivered this day and a copy of these orders.

9. That the orders in paragraph 3 be suspended during any period that the husband is outside of the jurisdiction.

10. That the husband ensure that an appropriate child seat is provided in any vehicle in which the child is to be transported and the case guardian make available an appropriate seat for the use of the child during the relevant period.

11. That paragraph 6 of the orders made on 28 October 2008 and paragraph 2 and 3 of the orders made on 17 November 2008 be discharged.

12. That the parties attend upon Dr A, psychiatrist, for the preparation of a family report in relation to the child’s living arrangements at the parties’ shared equal expense with such report to be used as evidence in these proceedings.

13. That the names of the paternal grandmother and the paternal grandfather be added to paragraph 8 of the orders made by this Court on 28 October 2008.

14. That the parties’ costs of and incidental to the hearing on 17 February 2009 and today be reserved.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel, including senior counsel to attend.

2. That the Singaporean passport of the child be held by the Registrar of the Registry of this Court until further order.

3. That 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 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.

4. That my reasons for judgment this day be transcribed and be made available to the parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9805 of 2008

MRS WHITE (SNR) as Case Guardian for MS WHITE

Applicant

And

MR GREEN

Respondent

And

MR AND MRS GREEN (SNR)

Second and Third Respondents

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is a most unusual parenting issue about what time the husband and his parents should spend with a child on an interim basis, pending a further interim hearing or ultimately a final hearing.  For reasons which will hopefully become clear, I propose to order that the child spend time with first her father and his parents this weekend without the necessity of an objective independent supervisor, but only on each of Saturday and Sunday between the hours of 2 pm and 5 pm. 

2. I intend to order that notwithstanding any antipathy between the respective grandmothers, they alone change over the child at the commencement and conclusion of the periods of time that I have just mentioned.  I say alone, and I mean in the absence of any other person in the immediate area. 

3. Secondly, I intend to order that until further order, the husband have time with the child on each Monday, Wednesday and Friday, but in a structured build-up way.  The first two weeks will be for two hours on each day of those days that I have mentioned.  The third and the fourth weeks will be for three hours on each day, and thereafter for four hours on each day, and then until further order, each session is to be supervised by a person nominated by the Independent Children's Lawyer.  That is, as I understand it, at the moment to be the commercial organisation, Aiders and Carers.  I propose to leave that issue to the parties to sort out amongst themselves. 

4. As I understand it, the supervisor cannot start the process for about a week, and I am expecting that Ms White will be the person who will liaise with the husband in the supervisory role during the interim period.  When and until the Aiders and Carers become the supervisors, they are to have a copy of these reasons made available to them before they undertake the responsibilities.  I intend to order that the question of the expedition of a final hearing be reserved for my determination after the next interim hearing, which I will fix for 11 June, before the senior registrar.

5. The purpose of that hearing will be to give the parties an opportunity to do two main things.  The first will be to produce evidence of how the relationship between the child and all participants is progressing, and if needs be, for changes to be made.  Secondly, if the parties feel it is necessary, to present some expert evidence as to the developmental needs of the child and what particular time and supervision, if any, is then needed.  All parties will need to present as much evidence as they can to the senior registrar, because I will then feed off his views as to whether or not a priority fixture should be given.  At this stage, I am anticipating that if the matter is determined on an interim basis in June, I should be able to give a final hearing only some months later. 

6. Specifically in relation to an expedited hearing, I will look at whether or not there is sufficient evidence ready and available to enable the court to determine all of the matters, particularly those relevant to s 60B and s 60CC.  To that extent, the parties will need to focus on not only their own needs in relation to the question of the interim hearing, but also the longer term as well.  If a case is not ready for trial, then I will give the parties leave to consider the position again later in the year. 

7. I also want to make clear that I am not in any way directing or even guiding the senior registrar as to how he should approach this matter.  He will determine the matter on the evidence and according to law.  My dilemma is that I have no such evidence at the moment.  I am making this decision based upon the limited evidence of the husband and the paternal grandmother, and the respective submissions of the parties.  The evidence of the husband is not particularly helpful, because in a tangential way, it endeavours to explain matters in my recent judgment and point out that there was evidence about which I had expressed concerns. 

8. This hearing is unashamedly being made available to put in place some measures that will enable the child to have some stability in her life, albeit, only on an interim basis.  The parties have now overcome all of the logistical hurdles about which I expressed concern in my reasons for judgment.  The child is here.  It is time for the parties to all focus on her future best interests.  As such, my reasons today will be truncated.  I do not see the necessity to traverse many of the issues, nor the various s 60CC factors, because I have already done that in the earlier reasons for judgment.  These reasons therefore flow on from the orders that I previously made. 

9. Having said that, it is important to record for this purpose just what each party has put to me today, and before doing so, I intend for the record to put some matters as to background.  The child was born in March 2008.  She is only one year old.  She is currently living with her grandmother and her mother in Melbourne whilst the proceedings to which I have just referred continue.  She is the only child of the marriage between the husband and the wife. 

10. The wife, as I have previously outlined on some detail in my reasons for judgment, has a serious susceptibility to strokes and might best be described currently as disabled and receiving neurological treatment.  The child’s father now remains living in Australia, and I propose, by agreement of the parties, to discharge the orders that I had previously made precluding him from leaving Australia. 

11. On 13 February 2009, after a contested preliminary hearing held over two days on 28 and 29 January, Benjamin J made orders that the husband's application to stay the parenting proceedings, which had been brought by the paternal grandmother, should be dismissed.  His Honour made those orders on the basis that Australia is not a clearly inappropriate forum.  My orders then picked up from that, and I made a determination relating to what I thought was in the best interests of the child.  It is on the basis of those orders that the child has been returned to Australia and we now have the situation where, as I foreshadowed in my reasons, the contact between the husband and his parents needs to be organised. 

12. I am told that the arrangements to which I have just referred about the child being brought back were organised between the parties.  That gives me a lot of comfort.  There is some dispute about just exactly what each party said and did, and why they did what they did, but in the end, the maternal grandmother collected the child from the paternal grandmother in Singapore and brought her back to Australia.  There have been some suggestions about the fact that the maternal grandmother rejected certain overtures about what the child needed, but having regard to the fact that we are now starting again, I propose to ignore all of that. 

13. All of this occurred only some days ago, and the husband and the paternal grandparents now want some orders in place for the foreseeable future.  My greatest concern today has been the fact that the child has just changed households and I do not want to destabilise her current position.  The parties have already agreed today that injunctions about movement from Australia can be lifted, save for that relating to the child, who is not to be removed by any party without the order of the court.  It is agreed that the husband can have his passport back, and that the child’s passport, which has been handed to the court today, can remain with the registrar until further order.

14. The contentious issues are simple.  The husband wants an order for contact with the child this weekend from tomorrow right through to Monday in the presence of the paternal grandmother, and thereafter he wants three days each week or 6 hours each day to be supervised by a person nominated by the Independent Children's Lawyer at his expense.  For her part, the case guardian sought orders that the contact occur this weekend for a period of two hours, and that it be on Monday, Wednesday and Friday thereafter for two hours.  All of that was to be under supervision. 

15. Subject to some minor variation, the Independent Children's Lawyer adopts the case guardian's position.  Fundamentally the Independent Children's Lawyer points out that this child needs stability, and with that comment, I agree.  The suggestion by the Independent Children's Lawyer is that Aiders and Carers will take over the role of the supervisor, but I am disquieted about that until such time as I can be satisfied that the child knows the person who is going to be the appropriate supervisor.

16. The husband's position was that there should be contact between he and the child, at the time at which he and the wife meet under an orchestrated program with the Office of Public Advocate, pursuant to an order of the Victorian Civil and Administrative Tribunal.  I can see some sense in that, but I also have some disquiet about whether the focus will be on the personal relationship between the husband and the wife, or on the child’s best interests.  I shall leave that issue to the judgment of the Office of Public Advocate, because as I understand it, they are to obtain expert advice about the wife's capacity to make decisions in any event.

17. In respect of this weekend, it was said that there was no supervision necessary because the paternal grandmother would be present.  The paternal grandmother has had a significant role in the child's life, and until now has been her predominant carer.  However, the child has already had a few days in a new environment and I would not want that disturbed.  Mr St John put to me that the paternal grandmother expressed concern about the standard of care in the maternal grandmother's household, either directly or by inference.  Such is the level of distrust between the parties.  My concern is that having a long period away from the paternal grandmother's household at this stage may just give the parties more of an opportunity for an argument.  This child needs a stable environment. 

18. In addition, my concern about this weekend is that if the child is away, having just settled into a routine in a new household, and with the introduction of her father after a long period of time, then two or three days in a baby's eyes may be very destabilising.  As I earlier said, I have no evidence at all to guide me here, and as such, am using what I subjectively think is common sense.  In addition, if both grandparents - and by that, I mean the grandmothers - are to be at the commencement and conclusion of the various days, then the child will hopefully understand that she is coming back to one household and spending time in a positive way in the other household.

19. It behoves both of the grandmothers to do the right thing and explain all of that to the child at the appropriate time.  In respect of the weekly time beyond this weekend, the husband's position, as put to me, was that he needed an opportunity to develop a relationship with the child, whom he has not seen for months, and to enable the court to work out something permanent for the child’s future.  There needs, therefore, to be longer periods so that the supervisor can be a witness as to his capacity. 

20. It is often been said that with respect to young children, what is needed is not long periods of time but more frequent periods of time, short periods apart.  This is one of those cases.  It is not the duration of time between the husband and the child that is important, but the quality of the time that he spends with her.  The attention span of this child, no doubt, will be limited by virtue of her age and development.  Senior counsel for the case guardian has put to me that the supervisor had to be someone other than the paternal grandmother or any other person on the husband's family's side for the sake of objectivity.  With that comment, to a very large degree, I agree.

21. I think there is some validity in the criticism by Mr Kirkham of the husband and his family, but I am not prepared to say today that they are the authors of their own misfortune, because my task is to look to the future interests of the child.  The trial judge will no doubt look at the history of this matter and appropriate criticisms, and in particular, criticisms of parties' credit can be then made. 

22. Unfortunately, as in cases like this, history tells us that the future is often guided by what happens in the past.  If the husband and his family are serious about the future of the child, they will put down the cudgels and begin working cooperatively in her best interests.  What better way to start that than the two grandmothers opening some dialogue to end what seems to be something of a blame game and a cold war.  It seems clear that notwithstanding all of the earlier indications that the husband and his family would spend their future in Singapore, everyone is now focussed on the child, and it may very well be that it is going to occur in Australia.

23. Section 60CA of the act requires me to make a decision which is in the best interests of the child; it being the paramount consideration.  I have previously canvassed all of the s 60CC factors when I delivered the substantial judgment some weeks ago.  I reiterate all of the matters that I there said.  In this case, it seems to me that for the ensuing period until the parties can present comprehensive evidence, and the court may have the benefit of some expert, it is appropriate that orders be made that the child spend a limited period of time this weekend and in the ensuing weeks under the supervision, as I have indicated. 

I certify that the preceding Twenty Three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  12 May 2009