BUCK & BUCK

[2013] FamCA 608

FAMILY COURT OF AUSTRALIA

BUCK & BUCK [2013] FamCA 608

FAMILY LAW – CHILDREN – With whom the child spends time – Where the Father retained the child in his care upon request 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 Buck

RESPONDENT:	Ms Buck
INDEPENDENT CHILDREN’S LAWYER:	Mr Dooley

FILE NUMBER: BRC 6808 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 Buck have sole parental responsibility for the child B born … 1999.

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 Buck & 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: BRC 6808 of 2008

Mr Buck

Applicant

And

Ms Buck

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The applicant father, Mr Buck (“the Father”) is 37 years of age having been born in 1975.  The Father is employed in health care.  The respondent mother is Ms Buck (“the Mother”).  The parties were married in 1998, separated in October 2003 and therefore their relationship subsisted for approximately five years. They divorced in December 2005.  The only child of the relationship is B, born in 1999, now aged 14 years. 

2. Final parenting orders were made by consent on 7 September 2009 whereby the child lived with the Mother and spent alternate weekends and half of school holiday time with the Father, and an order was made for the parties to have equal shared parental responsibility. 

3. It seems that those orders subsisted, and the parties complied with them, until July 2011 when the child stayed with the Father during the school holidays.  Whilst the child was staying with the Father a significant domestic violence incident occurred at the Mother’s residence between the Mother and her then partner Mr C.  At that time, the Department of Communities, Child Safety and Disability Services (“the Department”) became involved and contacted the Father, requesting that he retain the child in his care. 

4. Interim orders were made in the Children’s Court at Southport on 11 August 2011 that the child reside with the Father and have supervised contact with the Mother. However, it would seem that the child has had no contact with the Mother since these orders were made as he has a clear view of not wanting to see the Mother.  Moreover, the Mother herself has refused to see the child during this period, apparently on the basis that she does not want to be supervised by the Department.  Thus it is that the child has remained in the Father’s care since July 2011. 

5. Pursuant to the Father’s Initiating Application filed 16 January 2012, the Father seeks final orders including that the Father have sole parental responsibility for the child, that he live with the Father, and that the Mother have no contact with the child unless supervised by the Department.  The Father did advise the family report writer, Ms D, during his interviews with her in September 2012 that he would support the child spending time with the Mother if that was the child’s view or wish and if he chose to do so. 

6. B’s interests in the proceedings are independently represented by an Independent Children’s Lawyer, Mr Dooley, appointed for that purpose pursuant to the Family Law Act 1975 (Cth) (“the Act”). The Independent Children’s Lawyer filed an Application in a Case on 20 June 2013 seeking to have the matter heard and determined on an undefended basis. It is clear, in terms of the Mother being afforded procedural fairness and natural justice, that she has been well aware of the proceedings throughout their currency.

7. At a compliance hearing before Registrar Stoneham on 16 November 2012 the Mother informed the Court that she was withdrawing from further participation in the proceedings, and since then the Mother has failed to appear at a further mention on 8 March 2013.  It appears that the Mother attempted to file a Notice of Discontinuance in the matter, albeit in an invalid form, on or about 3 December 2012. 

8. The evidence includes that the Department removed the child from the Mother not only because the child was exposed to domestic violence between the Mother and her then partner Mr C, but also by reason of concerns being raised by the Department about the Mother’s mental health.  The evidence confirms that the Mother refused to participate in a psychiatric assessment, thus leaving the question of the stability of her mental health an open question and she has not co-operated in steps designed to resolve that question. 

9. The Independent Children’s Lawyer has explained in his affidavit filed 20 June 2013 that due to the Mother’s refusal to undergo psychiatric assessment the Independent Children’s Lawyer cannot progress matters for the Mother to spend time with the child, and it is on that basis that the orders in the form now submitted are sought. 

10. I am satisfied that the Mother has had the opportunity to be heard in these proceedings and has elected not to participate further in them.[1]  

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

11. I am satisfied that, having regard to the issues concerning domestic violence, the presumption in section 61DA of the Act is rebutted and does not apply.

12. I am satisfied, having regard to the contents of the family report of Ms D in particular, and also having regard to the other evidence briefly referred to, that in terms of the considerations set out in section 60CC of the Act, the orders now sought by the Independent Children’s Lawyer, and supported by the Father, are orders in the child’s best interests.

13. I therefore make orders in terms of the draft submitted by the Independent Children’s Lawyer now initialled by me and placed with the file.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 15 August 2013.

Associate: 

Date:  20 August 2013