Bond and Cornel

[2013] FamCA 621

FAMILY COURT OF AUSTRALIA

BOND & CORNEL	[2013] FamCA 621
FAMILY LAW – CHILDREN – With whom the children live – Parental responsibility – Where Mother seeks orders for sole parental responsibility for the children – Where Mother seeks orders for the children to live with her – Where Mother seeks orders for the Father to spend no time with the children - Where Father has served a term of imprisonment for a sexual offence on an intellectually disabled child – Best interests of the child – MRR v GR (2010) 240 CLR 461 – Children to live with Mother – Mother to have sole parental responsibility – Father to spend no time with the children – Father to have phone contact should the children so wish.
APPLICANT:		Mr Bond

RESPONDENT:	Ms Cornel
INDEPENDENT CHILDREN’S LAWYER:	Ms Wiid, Solicitor

FILE NUMBER: BRC 2246 of 2011

DATE DELIVERED: 22 July 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 22 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

The Applicant Father appearing by telephone (not legally represented)

COUNSEL FOR THE RESPONDENT:

The Respondent Mother appearing in person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Lyons 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 THAT:

1. The children, B born … 2000 and C born … 2002, live with the Mother.

1. The Mother have sole responsibility for the children.

1. The Father spend no time with the children.

1. The Father communicate with the children by telephone once per fortnight on Wednesday evening between 6.00 pm and 6.30 pm, with the Father to instigate the telephone call to a number advised in writing by the Mother for that purpose.  It is up to the children whether they wish to speak to their Father or not.

1. The within Orders hereby authorise the school/s attended by the children to provide to the Father, upon his request and 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 child’s educational and social progress, at an address to be supplied by the Father to the school/s.

2. The Mother to keep the Father informed as soon as reasonably practicable of any new serious medical condition, new serious health issue or new serious illness suffered by the children. 

3. The Independent Children’s Lawyer be discharged.

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 by this Court under the pseudonym Bond & Cornel 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 2246 of 2011

Mr Bond

Applicant

And

Ms Cornel

Respondent

REASONS FOR JUDGMENT

1. This is a most unfortunate case.  In this case, the parties, being the applicant, Ms Cornel and the father being Mr Bond, there were two children of the relationship between the parties, B, born in 2000 and C, born in 2002. 

RECORDED:  NOT TRANSCRIBED

1. The parties separated some time ago and unfortunately, the respondent father was charged with an offence against a nine year old, at that time, intellectually disabled child and was sentenced to a term of imprisonment.  There are various statements by the parties as to the severity of such assault.  However, it took place and he was incarcerated.  The children, and I refer to the report of Ms D of 26 April last year, indicated that B, in particular, had some – perhaps I should not use the word glorified but some fantasising effect concerned about her father and that, as C said in that report, he cannot remember his father but he would like to see him because he thought he was not a bad bloke or words to that effect.

2. I gave leave as, in effect, was requested or suggest by Ms D that the mother be at liberty to inform the children as to why the father was not seeing them since he was in jail.  I understand that she did, in fact, explain this to them and that as a result thereof, it appears as though B, in particular, was particularly hurt and disabused, C to a lesser extent, but B has nowadays has become that she wishes to have – at this stage, and I emphasise that – nothing to do with her father.  Now, C is ambivalent and I would have thought that perhaps in the near future that he will start making requests which must be considered by the mother for some contact with his father.

3. As I have said in argument, B is now almost 13 and C is 11 later in the year.  The mother seeks orders that, in fact, she have the sole parental responsibility of the children, that they live with her and that the father have no contact with the children whatsoever. 

4. She also seeks that they do not communicate with the father.  We will discuss that at a later stage.

5. Mr Bond has sought to appear before this court by phone.  It is alleged that he was given leave to appear.  I cannot for the life of me understand why he made a request.  If, in fact, he had been given leave to appear, such a request was just last week and he was directed to file an application, together with an affidavit, which he has not done.  He indicates that an order by a female was made wherein he was able to communicate with this court by phone.

6. I can find no order to that effect.  The only order – and he may be confused – was an order made by Principal Registrar Filippello on 22 November 2011, where he was given liberty to communicate by telephone with the children.  There is no order that we can find for him to make submissions to this court on the telephone.  However, I will allow him to appear and his complaint appears to be that, in fact, he has no contact with the children, but, in particular, he has no verbal contact with them pursuant to that order of Principal Registrar Filippello.

7. He says that he rings but there is no answer.  It is explained by the mother, who appeared here today unrepresented, that, in fact, she will not speak to the father.  She leaves the telephone available to the children when it rings not always in accordance with the order.  The children refuse to answer it, although, as she said from the bar table, C is becoming more interested in answering it.

RECORDED   :   NOT TRANSCRIBED

1. I stand corrected by Ms Cornel.  She indicates that he would accept the phone call a day before.  When it rings, he will not do it.  This is tragic because I think both children deserve the knowledge of their father.  However, all things have to be equal and they have been bitterly hurt by their father in relation to his incarceration and, consequently, I could not in any way order that there be joint parental responsibility of the children.  The mother is very, very hurt and angry about the father’s conduct.  This appears quite clearly in the material of Ms D’s, whose report, as I said, was some time ago.

RECORDED   :   NOT TRANSCRIBED

1. I would have thought that Ms D, perhaps, should have been approached, particularly in relation to B’s attitude towards her father subsequent to the disclosure, which I had ordered.  However, she has not been and I must do the best that I possibly can.  I am mindful of the case of MRR v GR (2010) 240 CLR 461 I could not be persuaded in this case that on the evidence before me – and I incorporate in this my reasons for judgment particularly the report of Ms D – that the hurdle has other than been overcome, that there should not be – the presumption that there should be joint parental responsibility fails miserably.

2. Further, I do not believe that there is any order that I can make in relation to joint parenting.  Consequently, I now have to decide the question of contact, whether it is significant and substantial, and where it is reasonably practicable.  The mother has opposed any form of contact with the father.  The father recognises at this stage that there appears to be little chance of his having any meaningful face-to-face contact with the children.  However, he prosecutes the fact that he would like to be able to talk to the children once per fortnight.

3. Mr Bond is a Manager in the mining industry and, as a result of his moving around, he sometimes loses phone contact because we’re on the digital system now, not the analogue, because with the old analogue you never lost range.  And he says that it is sometimes difficult, but he could organise it once per fortnight.  Ms Cornel has put before me that she does not really appreciate this idea, but recognises that the father is, at least, entitled to an endeavour to speak to his children should the children so wish.

4. It has fallen from Lyons of counsel on behalf of the independent children’s lawyer that perhaps it should be an order framed that the children – that a phone be made available to the children once per fortnight on Wednesdays between the hours of 6.00 pm and 6.30 pm, that it will be their wish to lift up the phone or not.  If they do not, it is unfortunate, but I am sure the mother will encourage them to do so.  I think also the father is entitled to school reports and, consequently, I would ask Ms Cornel that she authorise the school to send to the father at an address which he will give, school reports of the children.

5. I need go no farther than what I have said in my reasons already, that the children themselves are suffering psychological harm primarily as a result of the father’s incarceration for a sexual offence upon a young girl.  I say primarily, and that is the matter which has concerned me sufficiently enough to order that he do not have contact other than in the manners to which I have referred.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 22 July 2013.

Associate: 

Date:  22 July 2013