Bart and Bart and Ors

[2008] FamCA 301

FAMILY COURT OF AUSTRALIA

BART & BART AND ORS [2008] FamCA 301

CHILDREN—With whom a child communicates—Orders—where matter called on at short notice—where Respondent Father due to be released from prison imminently—where Respondent Father convicted of sexual offences—where Department of Child Safety has made findings of substantiated risk—Orders made restricting communication.

APPLICANT: Mrs Bart

RESPONDENT: Mr Bart

SECOND RESPONDENT: Ms D

THIRD RESPONDENT: Ms G

INDEPENDENT CHILDREN’S LAWYER: Ms Terrance

FILE NUMBER: BRF 1738 of 2004

DATE DELIVERED: 25 March 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 25 March 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Kennedy, Solicitor of Delaney & Delaney

SOLICITOR FOR THE RESPONDENT:	Mr Johnstone, Solicitor of Themis Lawyers & Associates
SOLICITOR FOR THE 2ND RESPONDENT	Mr Parker, Solicitor of Parker Family Law

SOLICITOR FOR THE THIRD RESPONDENT No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Terrance, Solicitor of Legal Aid Queensland

ORDERS

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. All previous Orders in relation to the Father and the child, M born … February 1994, are suspended

1. The Father not to communicate with the child, P born … January 1998, without the Mother’s approval or further Order of this Honourable Court.

1. The only form of communication between the Father and the child, M born … February 1994, is to be limited to   telephone communication unless ordered by this

   Honourable Court.

1. All parties given liberty to apply on forty-eight (48) hours written notice.

1. 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 under the pseudonym Bart & Bart is approved pursuant to s 12199)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 1738 of 2004

MRS BART

Applicant

And

MR BART

Respondent

And

MS D

Second Respondent

And

MS G

Third Respondent

REASONS FOR JUDGMENT

1. This matter was brought on at short notice by a letter of request from the solicitors for the applicant in this matter, the applicant being Mrs Bart.

2. The position is that there are two children.  One is the son of the applicant and the first respondent, that is P.  He was born in January 1998.  He has just turned 10.  The other child is M born in February 1994.  He recently turned 14.

3. M’s mother is Ms D, who is the third respondent.  I am informed by her legal representative, Mr Parker, that she is a deaf mute.  She is not in a position to accept the care of M.  She simply seeks orders that she be free to have ongoing time with her son in accordance with agreements that they may work out.  My strong suggestion to the parties is that they come to some sensible arrangement so that Ms D is no longer required to take part in this litigation.  There does not appear to be any contention about that position.

4. The father is serving a term of imprisonment in relation to sexual offences, some directed to a step-daughter and other offences relating to possession of obscene and objectionable material on his computer.  I am informed that he is due for release from prison on tomorrow's date.  There is a suggestion in the material that when released from prison he will be required to live at an address designated by the Department of Corrective Services.  That accords with my own experience in these matters, not my personal experience but the information that I have received in previous cases that a person on parole is subject to quite strict limitations on freedom of movement.  They must report to parole officers and they are precluded from residing at an address not acceptable to the parole officer.

5. The mother says in her material that the Department of Child Safety is satisfied of a substantiated risk to the child, M.  If anything does arise, presumably the Department of Child Safety can act promptly in the matter.  However, out of an excess of caution I will make orders in accordance with the terms of the application, and this is done without objection by the legal representative for the father.  I appreciate that he has not had the opportunity to fully seek instructions but he did not endeavour to make submissions to the contrary and so I will make the following orders and I note that the orders will only operate for a period of some five or six weeks.  The matter is set down for trial, I believe, on 6 May.  The matters can be reviewed by O'Reilly J on 48 hour's notice to have the matter relisted.

   ORDERS DELIVERED

   RECORDED  :  NOT TRANSCRIBED

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date: 25 March 2008