Whitehouse and Anor and Oswald and Anor

[2014] FCCA 2892

FEDERAL CIRCUIT COURT OF AUSTRALIA

WHITEHOUSE & ANOR & OSWALD & ANOR [2014] FCCA 2892

Catchwords:
FAMILY LAW – Parenting orders – service dispensed with – mother’s avoidance of service – children to continue to live with their paternal grandparents – paternal grandparents to have sole parental responsibility of the children.

Legislation:

Family Law Act 1975 (Cth), ss.60CC(2)(b), 60CC(2A), 60CC(3), 60I

First Applicant: MS WHITEHOUSE

Second Applicant: MR WHITEHOUSE

First Respondent: MS OSWALD

Second Respondent: MR Z WHITEHOUSE

File Number: MLC 8417 of 2014

Judgment of: Judge Hartnett

Hearing date: 28 November 2014

Delivered at: Geelong

Delivered on: 28 November 2014

REPRESENTATION

The First Applicant: In person

The Second Applicant: In person

The First Respondent: No appearance

The Second Respondent: No appearance

ORDERS

1. Service of the Initiating Application filed 18 September 2014 upon the Respondent mother be dispensed with.

2. The applicant grandparents have sole parental responsibility of the children X born (omitted) 2003 and Y born (omitted) 2006 (‘the children’).

3. The children live with the applicant grandparents.

4. The First Respondent mother and the Second Respondent father spend time with the children as agreed in writing and on such conditions as agreed between the applicant grandparents and either of the respondent parents.

5. So far as they are able, the applicant grandparents inform each parent as soon as reasonably practicable of any serious illness or injury sustained by either of the children together with the name and address of the treatment provider and the location in which the children or either of them are hospitalised or being treated.

6. So far as they are able, the applicant grandparents keep each parent informed of the following:-

   (a)any educational institute which the children are enrolled in; and

   (b)any extracurricular activity that the children are enrolled and participating in.

7. All parties keep each other advised of any change to their residential address and contact telephone number, with such proposed changes to be communicated to the other parent or grandparents at least 48 hours prior to any change taking place.

8. The applicant grandparents serve a copy of these Orders upon the Second Respondent father as soon as is practicable and upon the First Respondent mother at such time as she may choose to receive the documents.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT GEELONG

MLC 8417 of 2014

MS WHITEHOUSE

First Applicant

MR WHITEHOUSE

Second Applicant

And

MS OSWALD

First Respondent

MR Z WHITEHOUSE

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. Proceedings commenced on 18 September 2014 with the applicant paternal grandparents filing an Initiating Application seeking parenting orders in this Court.  The orders as sought by the applicant grandparents are set out in that Initiating Application and include that the applicant grandparents have sole parental responsibility with respect to their two grandchildren X born (omitted) 2003, who is now aged eleven years and Y born (omitted) 2006, who is now aged eight years.

2. The applicant grandparents further sought that the two children live with them and spend time and communicate with each of their mother and father as set out in that application.  Also before the Court this day is an Application in a Case filed 5 November 2014 by the applicant grandparents seeking the service of their Initiating Application upon the Respondent mother be dispensed with.  In support of that application, the applicant grandparents filed an Affidavit sworn by the paternal grandmother on 5 November 2014.

3. In support of the Initiating Application, there was filed by the applicant grandparents an Affidavit sworn by the paternal grandmother on 16 September 2014 and an Affidavit sworn by the paternal grandfather on 16 September 2014. There was also filed a s.60I of the Family Law Act 1975 (Cth) (‘the Act’) certificate indicating that the applicant grandparents did not attend family dispute resolution for genuine reasons.

4. There is also filed an Affidavit of Service and Acknowledgement of Service by the Respondent father, who indicated in his Acknowledgement of Service filed 5 November 2014, that he consented to the orders sought by each of his parents in their Initiating Application.  He resides in (omitted) in the State of Queensland and did not participate in the proceedings.

5. As to service of the Initiating Application upon the Respondent mother, it is sought that such service be dispensed with.  This is an order rarely made and requiring evidence to the effect that attempts have been made and that there is no possibility of service, including of substituted service.  In support of that application, there is a detailed Affidavit as to the various attempts that have been made by the applicant grandparents to contact the Respondent mother and others with whom she has had contact herself, for the purposes of effecting service of the Initiating Application and supporting affidavits in these proceedings. Those persons contacted to effect service included Julie Kefford, a solicitor with the Queensland Indigenous Family Violence Legal Service in (omitted), Queensland who had indicated that she was representing the Respondent mother.  Subsequently, Ms Kefford’s office advised that they would not accept service of the documents as they no longer represented the Respondent mother in these proceedings.  They declined to provide the Respondent mother’s address to the applicant grandparents.

6. On 23 September 2014, the Applicant paternal grandmother telephoned the Respondent mother and informed her of the filing of the Initiating Application and the hearing date in the Geelong circuit sittings on 10 November 2014 at 10am.  In that telephone call, the Respondent mother stated to the Applicant grandmother that she did not know why Ms Kefford’s firm would not be representing her, and said that she would ring Ms Kefford the following day. She refused to provide an address for service or her residential address to the Applicant grandmother.

7. On the day following, the Applicant grandmother telephoned Ms D from (omitted) Community Support Service, who had been the Respondent mother’s support person when she resided in (omitted) in the State of Queensland. The Applicant grandmother inquired whether Ms D had an address for the Respondent mother.  Thereafter, the Applicant grandmother contacted the (omitted) Police who informed her they would be able to serve the documents on the Respondent mother.  As a consequence of that, the Applicant grandmother proceeded to send the Initiating Application, affidavits and acknowledgement of service documents and covering letter to the police station in (omitted).

8. The inquiry to (omitted) Police from the Applicant grandmother being informed by Ms D that the Respondent mother had been staying with her daughter, B, in (omitted) in the State of Queensland.  The (omitted) Police attempted to effect service but were informed, when attending upon the property, that those who had been residing at the address had moved back to (omitted).

9. On 7 October 2014, the Applicant grandmother contacted Sergeant Mr H from the (omitted) Police Station who advised he had not seen the Respondent mother in the town.

10. On 7 October 2014, the Applicant grandmother managed to contact the Respondent mother who responded that she would ring her solicitor that day and would ring the Applicant grandmother back.  Again, the Applicant grandmother informed the Respondent mother that the court hearing was scheduled for 10 November 2014 at 10am in Geelong.  Again, she asked the Respondent mother for her address, and again the Respondent mother refused to provide it. 

11. On 9 October 2014, the Applicant grandmother contacted the Respondent mother. A friend answered her telephone and advised that the Respondent mother was unable to come to the phone.  Subsequent calls made by the Applicant grandmother to that phone number went unanswered.  Thereafter, further attempts to contact the Respondent mother by telephone were made and, on occasion, contact was made.  On each occasion, the Respondent mother referred to calling her solicitor and on each occasion the Respondent mother refused to provide her address or any address to which the Applicant grandmother might serve documents.

12. The Court is satisfied the Respondent mother is aware of the hearing in Geelong this day and is aware of the parenting orders sought by the applicant grandparents.  The Respondent mother has avoided service of the documentation and has, in the period of time when service was attempted, resided at some number of addresses.  The Respondent mother has chosen not to participate in these proceedings.

13. The Court will accede to the application made by the applicant grandparents and make the orders that are sought for the most part.  The Court will not particularise time spent between the children and either of their parents, as the Respondent mother is currently residing in a different State and not communicating in any meaningful way with the children nor with the applicant grandparents. The Respondent father will make whatever arrangements he shall, with each of his parents to see his children, being when he wishes to and/or is able. 

History

1. The Respondent mother and father commenced a relationship in 2002.  At the time they were living in (omitted) in the State of Queensland.  The Respondent mother had four children at the time. Those children are A born (omitted) 1997, B born (omitted) 1996, C born (omitted) 1994 and D born (omitted) 1992.  The youngest was thus 10 years of age at the time the parties commenced their cohabitation.  The children were, however, at that time not living with their mother. The younger two boys were living with their uncle in (omitted) and the elder two girls were living with their maternal grandfather.  When the Respondent mother became pregnant with the child X the subject of these proceedings, the elder two daughters relocated to live with their mother and the father in (omitted).

2. Subsequent to being informed of the pregnancy, the applicant grandparents travelled to (omitted) and purchased a three bedroom residential property for their son and the Respondent mother to reside in.  The purchase price of the property was $75,000.  The applicant grandparents furnished the residence.  They were both employed at that time.  Following the birth of X and in late 2003, the younger boys, C and D, relocated to also live with the Respondent mother and the father in (omitted).  The Respondent mother’s uncle had advised that he could no longer look after D and C. Hence the boys returned to their mother’s care.  From 2003 to 2006 they resided at the (omitted) residence. 

3. In 2005, the applicant grandparents travelled to (omitted) to visit the family.  They noted the residence was in need of desperate repair.  There was a wall missing; large holes in every remaining wall; exposed electrical wiring; and the house looked like it had been ransacked.  People other than the family had also been living at the residence.  In paragraph 12 of her Affidavit sworn 16 September 2014, the Applicant grandmother stated that:-

   “… Adult men were sharing bedrooms with the children and excessive amounts of alcohol were being consumed at the (omitted) residence whilst the children were there.”

4. There is an extensive documented history of alcohol abuse and verbal and physical domestic violence between the respondents in these proceedings.  Both parents consumed alcohol and the Respondent father served a period in jail for domestic violence.  In court proceedings in the Children’s Court in Queensland, the extent of the domestic violence and alcohol abuse of both the Respondent mother and father became known to the applicant grandparents.

5. In August 2006 the respondents’ younger son, Y was born, and in the following month his parents separated.  Following the separation, the Respondent father moved out of the (omitted) residence and the children initially remained with their mother in that home.  Shortly thereafter and in late 2006, the Respondent mother left (omitted) and relocated with the children to an unknown location.

6. Following the Respondent mother’s departure from the (omitted) residence the applicant grandparents sold the property before further damage could be sustained to it.  In November 2010, the Respondent mother’s own mother passed away.  The applicant grandparents received a telephone call from the Respondent mother requesting money.  This was the first contact she had made with them since vacating the (omitted) residence some four years earlier.  Shortly thereafter and on 18 November 2010, the Respondent mother and one of her children, C, were charged with grievous bodily harm to another person.  Child Safety Services, Department of Communities, Child Safety and Disability Services (‘Child Safety Services’) in Queensland intervened due to ongoing reports concerning the welfare of the children.  In November 2010, court assessment orders were granted providing custody to the Chief Executive and placing the children of these proceedings in foster care. That order was to expire on 22 December 2010. 

7. The applicant grandparents were unaware of the children’s circumstances at that time.  Once they were made aware that X and Y were in foster care, they contacted Child Safety Services and advised them that they would take care of the children.  The Respondent mother did not agree for the children to be placed with the applicant grandparents.  Accordingly, the applicant grandparents flew to Queensland to attend a case planning meeting in (omitted) on 4 March 2011.

8. From November 2010 to August 2011, the children remained in foster care.  They were placed outside of the (omitted) area, as the family of the victim subject to the grievous bodily harm charge, had made threats to the Respondent mother and all of her family members.  During that period of time, the applicant grandparents travelled to (omitted) to visit the children on two separate occasions.  They also spoke with them by telephone regularly. 

9. From November 2010, the applicant grandparents negotiated with Child Safety Services for the boys to be placed in their care.  In August 2011, Child Safety Services and the other parties agreed for the children to be placed with the applicant grandparents.  The agreement was an informal arrangement.  In August 2011, the children relocated from their foster care placements outside (omitted) in the State of Queensland to (omitted) in the State of Victoria. 

Children in the care of the paternal grandparents and subsequently their mother

1. Upon relocating to (omitted), X was immediately enrolled in grade 2 at (omitted) Primary School.  He had missed a significant amount of school and was found to be behind the academic level of his class cohort. Y also commenced to attend at school when he was of school age.  The children initially struggled at school as a consequence of their limited school and kindergarten attendance whilst in the care of the Respondent mother.  The applicant grandparents organised a tutor to attend at the home two days a week to assist the children.  The children settled in and enjoyed school, becoming quickly involved in the school community and extra‑curricular activities. 

2. The children became members of the (omitted) Football Club and played organised basketball and indoor soccer.  They attended swimming lessons.  They were invited to birthday parties.  They had not previously attended birthday parties.  They themselves had birthday parties organised for them and invited friends.  They had never experienced a birthday party.  They had not received a birthday or Christmas card from either of their parents.

3. The children remained living with their grandparents from August 2011 until January 2014.  In late December 2013, the Respondent mother advised the applicant grandparents that she had obtained employment, stopped drinking, and obtained secure accommodation in (omitted) in the State of Queensland. The Respondent mother’s communication with the children increased and the children spoke to her regularly by telephone.  By mutual agreement, the applicant grandparents returned the children to the care of their mother on 3 January 2014.  The applicant grandparents thought that (omitted) was a small country town with a close community that would support the Respondent mother and the children.

4. The applicant grandparents accepted what the Respondent mother said about her improved circumstances and her changed attitude, and felt it in the best interests of the children that they return to reside with their mother.  Prior to their return, the applicant grandparents commenced to pay for the Respondent mother’s rent.  When the children returned to her care the applicant grandparents continued to pay for the Respondent mother’s rent for a period to allow for the children to be provided for and settle in. 

5. The children remained residing with their mother for a period of some four and a half months.  In that time, a large number of people resided in the rental accommodation.  At one stage there were eight people in the residence.  The applicant grandparents commenced to receive telephone calls from the Respondent mother again asking for more money and food.  The Respondent mother informed the applicant grandparents that the male with whom she was residing at that time had been violent toward her.  Ms D, the Respondent mother’s support person in (omitted), advised the applicant grandparents that the children had attended school at times without lunch.  Ms D further advised the applicant grandparents that the Respondent mother had resumed drinking, and that on one occasion her daughter, A, had contacted the police due to the Respondent mother violently arguing with her cousin who also resided at the residence.  Both were intoxicated and the police attended.  The children were sent to a neighbours for the night.  The applicant grandparents were also informed by Ms D that the Respondent mother had attempted to stab A on another occasion. 

6. At Easter 2014, the Respondent mother rang the applicant grandparents again requesting further funds.  She advised them that she had quit her job due to back problems.  The Respondent mother was scheduled to undergo serious back surgery.  The applicant grandparents suggested that the children be returned to (omitted) to their care whilst the Respondent mother underwent her back operation and rehabilitation.  Once that suggestion was made, the Respondent mother immediately took the children out of school and travelled to (omitted).  It was arranged that the applicant grandparents would collect the children from (omitted). They did so.

7. The applicant grandparents returned to (omitted) in the State of Victoria with the children on 19 May 2014. Since that time, the children have remained living with their grandparents in the (omitted) area.  The children were re-enrolled at (omitted) Primary School and were welcomed by that school community upon their return.

8. The children have told their grandparents that they are happy with their current living arrangements. Since 19 May 2014, the Respondent mother has telephoned X on one occasion on his birthday, and Y on one occasion on his birthday.  The boys themselves requested to ring their mother on one occasion, being 26 August 2014.  The boys have not asked to see their mother.

9. In respect of the children’s contact with their father, there has been no significant contact since 2006.  The Respondent father has very little contact with his parents and their attempts to encourage a relationship between the children and him have been unsuccessful.  The children last saw their father in January 2012.

1. The Respondent mother’s children, C and D, have been subject to orders with Child Safety Services in Queensland since November 2010, and remain in foster care.  The Respondent mother left dogs at the residence in which she resided in (omitted), and they have been seized by the council.  The Respondent mother’s life currently appears to be transient.

2. Both the applicant grandparents are retired.  They live in a three bedroom, double storey house in (omitted).  The children have adequate accommodation and their grandparents are in the process of putting in a pool for them to enjoy in the warmer summer months.  The Applicant grandmother previously worked as a (occupation omitted) for (employer omitted) in (omitted).  The Applicant grandfather was employed as a (occupation omitted) for a (employer omitted) company until his retirement in late 2013.

Consideration

1. It is clearly in the children’s best interests that they continue to reside with their paternal grandparents. Furthermore, on the facts found on the evidence before the Court, it is open to the Court to find that the legislative presumption as to equal shared parental responsibility is rebutted. The applicant grandparents shall have an order for sole parental responsibility of the children.  Neither of the parents are able to care for their children in any emotional, physical or financial sense.  The children are thriving in their environment with their grandparents, and it is most fortunate for them that their paternal grandparents have been willing and are able to step into the role of daily care givers to the children.

2. The applicant grandparents provide the children with stability, support, encouragement and connections within their community.  They are in a safe environment.  It is not possible, in the circumstances of this case, to provide for the children to spend time, whether in equal measure or otherwise, with their mother and father.  Their father does not seek to spend any time with them, and their mother is incapable of caring for them and providing for their needs. She does not seek to be actively involved in their lives whilst they are with their grandparents.

3. When turning to s.60CC(2A) of the Act, the Court notes that it is to give greater weight to the considerations as set out in paragraph s.60CC(2)(b) of the Act, than the considerations as set out in s.60CC(3) of the Act. There is a need, in these proceedings, to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence when in the care of both their parents.

4. The children have expressed a view to their grandparents that they are happy with their current living circumstances.  They have a close and loving relationship with each of their grandparents.  They have no real relationship with their father, and they have a difficult relationship with their mother.  Their mother has failed to spend time with them over a considerable period of time and has limited communication with them.  She is unable to maintain them or keep them safe.  She has little capacity to provide for their needs, including their emotional and intellectual needs.

5. While the children have a right to enjoy their cultural heritage, they must be protected from negligence, abuse and violence.  The Court is satisfied that their grandparents are loving grandparents who have done what they can to date to facilitate the children’s relationship with their mother, their half siblings and their mother’s wider community.  Indeed, they handed the children back over into the Respondent mother’s care early in this year, in support of that relationship.  It was only when it became apparent that the children were suffering and neglected and exposed to family violence that they again acted to take the children into their care.

6. The Respondent mother did not seek to be involved in these proceedings and avoided service in respect of them.  The Respondent father supports the making of the orders sought by the applicant grandparents.  It is important to finalise this matter so that the children have a necessary stability in their arrangements into the future. In particular, given the lack of stability that they have experienced in their lives to date as a result of their parents’ neglect of them.

7. The Court shall make the orders that are sought by the applicant grandparents as final orders.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 10 December 2014