Battersby and Martin and Anor

[2009] FamCA 1222

FAMILY COURT OF AUSTRALIA

BATTERSBY & MARTIN AND ANOR [2009] FamCA 1222

FAMILY LAW – CHILDREN – Parenting orders – with whom a child shall live – with whom a child shall spend time – parental responsibility

Family Law Act 1975 (Cth)

APPLICANT: Ms Battersby

1^st RESPONDENT: Ms Martin

2^nd RESPONDENT: Mr Martin

INDEPENDENT CHILDREN’S LAWYER: Ms Sheehy

FILE NUMBER: BRC 9160 of 2009

DATE DELIVERED: 13 November 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 13 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Martin

SOLICITOR FOR THE APPLICANT: Hayley Ritchie Solicitors of Morayfield

1^ST RESPONDENT: No appearance

2^ND RESPONDENT: In Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Sheehy of Rhonda Sheehy & Associates of Caboolture

Orders

IT IS ORDERED BY CONSENT THAT

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS ORDERED THAT

1. All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

2. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

3. The Independent Children's Lawyer be discharged.

4. 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.

IT IS DIRECTED THAT

1. The Minutes of Consent remain upon the Court file.

IT IS NOTED THAT

The child, the subject of these proceedings will be almost 18 at the time when the Respondent Step-Father will be eligible for parole.

MINUTES OF CONSENT

IT IS AGREED BY CONSENT, ON A FINAL BASIS:

1. Upon the expiration of the Child Protection Order made in the Caboolture Children’s Court on the 24^th of April 2008 that … born … September 1998 herein referred to as the child, live with the Applicant. That the Applicant have sole parental responsibility for the child. That the First and Second Respondents be prohibited from spending time with or communicating with the said child.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9160 of 2009

MS BATTERSBY

Applicant Step-sister

And

MS MARTIN

1^st Respondent Mother

And

MR MARTIN

2^nd Respondent Step-father

EX TEMPORE

REASONS FOR JUDGMENT

1. The tragic history of the child the subject of these proceedings, who was born in April 2008, includes a series of the most appalling, disgusting, and disgraceful activities one could imagine with respect to her at the hands of her parents. 

2. They are each now serving 10½ years gaol as a result of those hideous offences.  It is difficult to imagine offences more serious with respect to a young child and the seriousness of those offences is reflected in the sentence imposed by the criminal courts of this state. 

3. In those circumstances the Department of Child Safety, perfectly understandably one might think, applied for, and obtained, an order under state law.

4. Having taken the child into the Director’s care pursuant to that state law, the Department, in accordance with statutory responsibilities imposed upon it by the state legislation which governs its activities, placed the child into the care of her sister. 

5. The order expired and, upon its expiration, the Department, having undertaken the process of assessment and investigation with which it is statutorily charged, determined to not seek a further order in respect of the child – the effect of which was to continue the child’s sister providing her day-to-day care.

6. Proceedings are joined in this court which can now take place because there is no order under a state child welfare law (see section 69ZK of the Act). 

7. In those proceedings the child’s parents, who are in gaol, and the applicant, who is the child’s sister, have agreed final orders.  Those final orders were signed on 6 April 2009 by the mother and by the father on 28 October 2009. 

8. The father appears by telephone this morning from prison.  He indicates again that he is prepared to consent to the orders contained in those minutes of consent signed by him. 

9. Those minutes of consent provide that, upon the expiration of the child protection order, the child live with the applicant.  They also provide that the applicant have sole parental responsibility for the child and that the first and second respondents be prohibited from spending time with or communicating with the child.

10. In the proceedings before me today, which occur in the Magellan directions list, Ms Sheehy, who appears as the independent children’s lawyer, says that she cannot add her consent to the orders by reason of the fact that she herself is not in possession of any independent information which would indicate to her, by reference to her statutory and other responsibilities as an independent children’s lawyer, that the orders are in the child’s best interests. 

11. Ms Sheehy then says that she neither consents to nor opposes the consent orders otherwise reached between the parties. 

12. The fact that parties consented to orders does not absolve the court from the responsibility of assessing whether those orders are in the best interests of the child concerned. 

13. Ms Sheehy is right to point out that in normal circumstances, particularly in ugly circumstances such as exist in this case, the court would be assisted by independent information from, for example, a reporting forensic social worker or psychiatrist. 

14. Ms Sheehy proposes orders then, to which the mother expresses no objection. 

15. Those orders would see the matter being returned to this court at a further directions hearing. By definition, such orders would involve either the applicant or the state (or both) in further expense and would involve, in any event, the necessity for this court to re-convene in circumstances where I wonder about the utility of same.

16. It is to be noted that, by reason of the consent order otherwise agreed to between the child’s parents and the applicant sister, the child will be all but an adult on the date of earliest possible release of the parents (parole in 2016). Parole is discretionary and determined by an independent body and, therefore, release on that date cannot be guaranteed.  The guaranteed release date for the parents is 2018 at which time the child will well and truly be an adult.

17. The issue for this court, then, is whether the court can make orders in accordance with what I will call the original consent orders signed by the applicant sister and the father in circumstances where no information is before it in respect from the sort of independent source that Ms Sheehy’s contemplated orders suggest. 

18. In my view, such an order can be made. 

19. I rely principally on the fact that there is not the slightest suggestion that the applicant is anything other than an entirely appropriate carer for the child. 

20. As I said during the course of argument, I have no doubt that the appalling and disgraceful behaviour perpetrated on this young child over a long period of time will cause for her significant difficulties, most of which I suspect will last a lifetime. 

21. Equally, I have no doubt that the applicant sister is in a position to address those difficulties (as well as anyone can). 

22. In arguing in favour of the orders sought by her Ms Sheehy says that a report writer might, for example, recommend a number of courses and the like that can be availed of.  I have no evidence before me which would remotely suggest that the applicant sister would do anything other than avail herself of such assistance including such courses as might be available to her or any other member of the community. 

23. Furthermore, I have not the slightest doubt that the sister would make contact with the Department of Child Safety as and when necessary and, given the appalling nature of the history relating to the orders initially sought by that Department in respect of the child, that it, too, will have an ongoing supervisory role in respect of the child. 

24. In those circumstances it seems to me not only plain that I should make orders (which I note include there being no communication or time spent between the child and the perpetrators of these offences by agreement between the parties) and also that I should bring this matter to an end so as to better allow the applicants to get on with the difficult job ahead.   

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  11 December 2009