Banks and Parker

[2013] FamCA 620

FAMILY COURT OF AUSTRALIA

BANKS & PARKER

[2013] FamCA 620

FAMILY LAW – CHILDREN – With whom a child lives – Undefended hearing – s60CC – Where history of violence – Presumption of equal shared parental responsibility rebutted – Children to live with the Mother – Mother to have sole parental responsibility for all matters concerning the children.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Banks

RESPONDENT:	Mr Parker
INDEPENDENT CHILDREN’S LAWYER:	Ms Lyrene Wiid, Solicitor

FILE NUMBER: BRC 8024 of 2010

DATE DELIVERED: 8 August 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 8 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Slade-Jones of Counsel appearing for the Applicant Mother

SOLICITOR FOR THE APPLICANT: Walker Pender

COUNSEL FOR THE RESPONDENT: There being no appearance by the Respondent Father

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Sara of Counsel appearing for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER: Lyrene Wiid Lawyer & Migration Agent

Orders         

IT IS ORDERED ON AN UNDEFENDED BASIS THAT:

1. The children, B born … 2004, C born … 2005, D born … 2008 and E born 2009, live with the Mother.

2. The Mother have sole parental responsibility for the major long-term and short-term issues in relation to the children including but not limited to:

   a.            the children’s education (both current and future);

   b.           the children’s religious and cultural upbringing;

   c.            the children’s health, other than a minor transitory illness or injury;

   d.           the children’s name; and

   e.            changes to the children’s living arrangements that make it significantly      

   more difficult for the children to spend time with each parent.

3. The Father be at liberty to contact the children by way of letters, greeting cards and presents.

4. The Mother and Father shall keep each other informed of their postal address and will advise each other in writing within forty-eight (48) hours when there is a change to such details.

5. The Father shall keep the Mother informed of his contact telephone number and will advise the Mother in writing within forty-eight (48) hours when there is a change to such details in writing.

6. The Mother shall advise the Father as soon as practical of any emergency, serious illness, accident or hospitalisation involving the children following such an event, including the name and contact details of the treating doctor and/or hospital.

7. The Mother to request the school/s attended by the children to provide to the Father, at his cost, copies of school reports, school newsletters, applications for class photographs and the like AND FURTHER to provide information to the Father in relation to the children’s educational and social progress.

8. The Independent Children’s Lawyer be discharged.

9. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an Order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

   IT IS NOTED that publication of this judgment by this Court under the pseudonym Banks & Parker 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 BRISBANE

FILE NUMBER: BRC 8024 of 2010

Ms Banks

Applicant

And

Mr Parker

Respondent

REASONS FOR JUDGMENT

1. Well, I think very briefly I shall say that I am, as I have already indicated, I think that the applicant mother has had a rotten life.  She has been abused from when she was very, very young and she appears unfortunately to have picked the wrong men.  She is a remarkably young looking mother of seven.  A remarkably young looking mother and for what she has gone through as I sincerely hope that she will, with the assistance of some people at least ensure that the future of herself and the children are not blighted by revolting bullies such as she has experienced for the last few years. 

2. She cannot allow that to happen for the children’s sake.  She already recognises the children are now – she might be exaggerating slightly but I can completely understand the reason for it, terrified of their father.  I do not think they are terrified.  The eldest one appears to have a little bit of an interest.  The younger two if my memory serves me correctly, want nothing to do with him.  That is according to Ms F’s report which I have read and as usual Ms F’s report is in-depth and of great assistance to the court. 

3. There has been a suggestion by the father in his material which, notwithstanding, he has not seen fit to appear before the court and I would not  be surprised if he turned up in the next 10 or 15 minutes that he wants to have some form of contact with the children who he has not seen for a period of three years.  Is my memory correct in that?  Now, this has been covered by the suggested orders sought by the applicant in that order 2 – proposed order 2.  Am I right in saying this Mr Slade-Jones:

   The father be at liberty to contact the children. It says the t-h-e-c (sic) by way of letters, greeting cards and presents. 

4. He has referred to the fact that he has $700 worth of presents sitting in a room or something or other which may be too young for the children now but he wishes to be able to deliver it to them.  I am particularly concerned about the younger two children who have – the youngest does not have much memory but it is the second one who is the one that is most concerning.  That is – is that C – no, D – no, it is both.  It is C and D who are particularly afraid of their father alleging that they have seen, one of them says that he seen the father trying to strangle his mum and they want nothing to do with him. 

5. These children are at a very delicate age.  I need not go into the allegations concerning his unfortunate conduct in relation to a step-child if my memory serves me correctly other than to say that he was convicted of a heinous offence, a bullying offence which no male should ever be charged with if they are proud of their own selves.  Consequently, I have no hesitation taking into consideration the requirements of section 60CC, to say adopting what Ms F, the family consultant has said, and in particular incorporating into these my reasons, the history of the mother and the history of the father as set out in Dr G’s report, Dr G’s report; that no good purpose would come from there being the presumption remaining in force and effect. 

6. I am more than satisfied that on the evidence before me if only that there has been clear evidence of domestic violence that it no longer applies and in this case the mother has to be protected as much as we can in this court by giving her sole parental responsibility for the children, the children live with her and that there be contact by the father in accordance with the paragraphs 2, 3, 4 and 5 – 1, 2, 3, 4 and 5 of the minutes of order sought in the document filed by the Mother on 8 July 2013.

7. May I say further that the mother is to request the schools at which the children are and will be attending to forward to the father copies of school reports.  That is an addition.  Just taking into consideration Ms F’s report and Dr G’s report the particulars required under section 60CC are eminently reasonable and stand out like the proverbial.  I do not think it is necessary for me to enumerate every one and discuss each one seriatim.  I just do not – I do not think the father has sufficient ability to in any way contact his children at this stage.  If he wishes to he may make application at a later stage taking into consideration the relevant phrase – the relevant authorities.  I order accordingly.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 8 August 2013.

Associate: 

Date:  8 August 2013