Brons and Buck

[2013] FamCA 598

FAMILY COURT OF AUSTRALIA

BRONS & BUCK [2013] FamCA 598

FAMILY LAW – CHILDREN – With whom the child spend time – Where the child was removed from the Mother’s care by the Department of Communities, Child Safety and Disability Services – Where the child has been living with the Father since July 2011 – Where the Mother has not spent any time or communicated with the child since July 2011 – Where the Mother failed to participate in the proceedings

Family Law Act 1975 (Cth)

Allesch v Maunz Allesch v Maunz (2000) 26 Fam LR 237

APPLICANT: Mr Brons

RESPONDENT: Ms Buck

INDEPENDENT CHILDREN’S LAWYER: Mr Dooley

FILE NUMBER: BRC 6807 of 2008

DATE DELIVERED: 15 August 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 15 August 2013

REPRESENTATION

FOR THE APPLICANT: In person

FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Dooley Solicitors

Orders

IT IS ORDERED

1. That all previous Orders be discharged.

2. That the Father Mr Brons have sole parental responsibility for the child B born … 2002.

3. That the child live with the Father. 

4. That the Mother Ms Buck spend time with and communicate with the child on such conditions as may be agreed between the Mother and the Father.

5. That the Independent Children’s Lawyer be discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Brons & Buck 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: BRC6807 of 2008

Mr Brons

Applicant

And

Ms Buck

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This Application concerns B (the child), born in 2002, who is 10 years of age.

2. The Applicant Father, Mr Brons (“the Father”), is 36 years of age, having been born in 1977.  The Father is employed as a manager.

3. The parties commenced their relationship in July 2001, whilst the Mother was then temporarily separated from one Mr C, and the parties finally separated in or around November 2001 prior to the birth of their son, B.  B is the only child of the relationship.

4. On 10 September 2009, Federal Magistrate Slack made final orders that the child live with the Father for nine days each fortnight, and with the Mother for five days each fortnight, and that the parties have equal shared parental responsibility for the child.

5. In July 2011, a significant domestic violence incident occurred between the Mother and her then partner, Mr D whilst the child was living with the Mother.  At that time, the child was taken into the care of the Department of Communities, Child Safety and Disability Services (“the Department”) and placed into the Father’s care.  Shortly thereafter, on 11 August 2011, interim orders were made in the Children’s Court that the child reside with the Father and have supervised contact with the Mother.

6. On 24 May 2012, the Department withdrew their application, and the matter was transferred to the Family Court. 

7. Thus it is that the child has resided with the Father and his current wife and his two step-siblings since the Department removed him from the Mother’s care in July 2011.

8. Since that time the Mother has not had time or communication with the child, seemingly because the Mother does not seek to have any time with any of her children supervised by the Department.

9. Pursuant to his Initiating Application filed on 21 February 2012, the Father seeks orders, including an order that the child live with the Father, and that he have sole parental responsibility for the child and that the Mother have contact with the child when supervised by the Department.

10. Mr Dooley is the Independent Children's Lawyer appointed pursuant to the Family Law Act 1975 (Cth) (“the Act”) to represent the child’s interests in the proceedings. The orders now sought by the Independent Children's Lawyer and seemingly supported by the Father includes an order that the Mother spend time with and communicate with the child on such conditions as may be agreed between the Mother and the Father.

11. I am satisfied in terms of procedural fairness and natural justice that the Mother has had the opportunity to be heard in relation to the making of the orders that are now sought by Independent Children’s Lawyer and supported by the Father.[1]

    [1] Allesch v Maunz Allesch v Maunz (2000) 26 Fam LR 237 per Kirby J.

12. At the compliance hearing in this matter before Registrar Stoneham on 16 November 2012, the Mother informed the Court that she was withdrawing from further participation in these proceedings.  Since then, the Mother has failed to appear at a further mention on 8 March 2013.  At that time, Registrar Stoneham informed the Independent Children's Lawyer and the Father that the Mother had purported to file a Notice of Discontinuance on 3 December 2012, although the form in which it was filed was invalid.

13. On 20 June 2013, the Independent Children's Lawyer filed an Application in a Case and a supporting affidavit seeking to have final orders made. The Independent Children's Lawyer’s affidavit filed on 20 June 2013 confirms that the Mother has refused to undergo psychiatric assessment, and on that basis the Independent Children's Lawyer cannot progress matters in terms of orders for the Mother to spend time with the child.

14. I am satisfied that the presumption of equal shared parental responsibility is rebutted in this case, given the evidence concerning domestic violence, and in any event would be contrary to the child’s best interests having regard to the considerations in s 60CC of the Act, given the history I have briefly outlined earlier.

15. I am satisfied, having regard to the s 60CC considerations, that it meets the child’s best interests for orders to be made as now sought by the Independent Children's Lawyer and supported by the Father.

16. I therefore make orders in terms of the draft submitted to me, now initialled by me and placed with the file.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 15 August 2013.

Associate: 

Date:  16 August 2013