Bell and Sherlock and Anor

[2012] FamCA 606

FAMILY COURT OF AUSTRALIA

BELL & SHERLOCK AND ANOR [2012] FamCA 606

FAMILY LAW – CHILDREN – Urgent application for ex parte order concerning a young child – Order made ex parte – Matter relisted to 8 August 2012

APPLICANT: Mr Bell

FIRST RESPONDENT: Ms Sherlock

SECOND RESPONDENT: Mr Fordham

FILE NUMBER: BRC 4630 of 2010

DATE DELIVERED: 10 July 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O'Reilly J

HEARING DATE: 10 July 2012

REPRESENTATION

THE APPLICANT: In person

THE FIRST RESPONDENT: In person

THE SECOND RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Kirkman-Scroope

THE INDEPENDENT CHILDREN’S LAWYER:

Mr Emerson

Emerson Family Law

Orders

IT IS ORDERED UNTIL FURTHER ORDER

1. The child R born … August 2007 live with Mr Bell.

AND IT IS FURTHER ORDERED

1. To facilitate order 1 Mr Bell collect the child R tonight from either Property C, Queensland or Property A, Queensland or such other premises as the child may be and bring the child R to his residence at Brisbane.

2. Mr Bell must bring the child R to Child Dispute Services … Brisbane 4000 by 10:00am tomorrow 11 July 2012.

NOTATION

1. Queensland Police Service … is requested to accompany Mr Bell and to assist him in carrying out order 2 of these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bell & Sherlock and Anor 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 4630  of 2010

Mr Bell

Applicant

And

Ms Sherlock

First Respondent

And

Mr Fordham

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. Submissions have been made concerning the child R born in August 2007 who is 4 years, nearly 5 years, in relation to interim arrangements until the matter can come back before the Court. 

2. R’s biological father, Mr Fordham, was joined in the proceedings only today as the second respondent.  R has grown up with the mother, Ms Sherlock (“the mother”) and Mr Bell (“the father”), who is the father of 3 other children the subject of these proceedings, namely J, G and T.

3. The independent children’s lawyer, with the parties, has prepared potential final orders concerning those 3 children, J, G and T, which I anticipate being made tomorrow.  The form of the orders has been in place all day but is likely to have some minor changes as the result of evidence this afternoon from the mother, in particular, concerning her partner Mr L that she ensure that those 3 children do not come into contact with Mr L.

4. In relation to R, however, there is a difficult situation. At the moment, at least as of this morning, the mother and Mr L were living in the same home at Property C, Queensland, and this evening the mother, after giving certain evidence today and having received counselling, has said she will not be returning to that home but going into the care of a domestic violence shelter.  The evidence which the mother gave today I need not repeat, but make plain that delicacy presently is required, and great care and caution in relation to whatever orders I might make tonight concerning R. 

5. There is another child, M, who is the younger half sibling of R, and the child of the mother and Mr L. I am concerned as to M’s safety having regard to the evidence of the mother this afternoon. However, as M is not the subject of any application or any proceedings I have no power presently to make orders in respect of her.  Fortunately however there has been a representative from the Department of Community Services present all day and indeed yesterday, Ms E, who has said she will contact the region’s case worker and senior departmental personnel in Queensland this evening such that the Department may or may not take action this evening in relation to taking M into care.

6. In relation to R, the independent children’s lawyer has proposed, and the father agrees, that the father drive tonight to Property C and/or Property A and collect R and bring her to Court in the morning.  R knows the father very well, having for most of her short life lived with him and her siblings.  The evidence that the mother gave today included that if the mother tried to leave the violent relationship with Mr L and take M, Mr L had said she could never have M or take M from him, and Mr L’s father, Mr L Snr, had said that if the mother tried to take M he would give her a broken nose and 2 black eyes and she would never get M. This is why, the mother explained, she has been staying in the domestically violent relationship.

7. If I make the order proposed concerning R, such would not involve collecting M this evening, only R. It is to be hoped thus that there would not any incidents of danger to either of the children or the father or anyone this evening. 

8. The mother proposed that she would like to be able to collect M and R from the care of Mr L’s parents.  There is the difficult situation however that Mr L and the mother drove today from Town B or Town G to Town N and caught from there a train to Brisbane. 

9. The mother reveals that she has the house keys to Property C, the car keys and Mr L’s wallet.  I cannot imagine that the mother would be able to carry out successfully any plan that she drive to Mr L’s parents to collect the children without a potentially violent incident this evening, and it is my obligation to protect the children from that, and indeed, the mother, she being in an emotionally raw state, so as to not place her in a dangerous situation, especially while she is with the children. 

10. It seems to me, therefore, that in R’s best interests I should adopt the proposal of the independent children’s lawyer.

ORDERS DELIVERED

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 10 July 2012

Associate: 

Date:  17 July 2012