Cresswell and Warnish and Ors

[2019] FamCA 1015

FAMILY COURT OF AUSTRALIA

CRESSWELL & WARNISH AND ORS [2019] FamCA 1015

FAMILY LAW – CHILDREN – final orders made for the children to have no contact with the father and no contact or communication with the paternal family

Family Law Act 1975 (Cth)

APPLICANT: Ms Cresswell

FIRST RESPONDENT: Mr Warnish

SECOND RESPONDENT: Ms Warnish

THIRD RESPONDENT: Ms Chamberlain

FILE NUMBER: BRC 4091 of 2013

DATE DELIVERED: 21 October 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 21 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms D Firth

SOLICITOR FOR THE APPLICANT: Barton Family Lawyers

THE FIRST RESPONDENT: Self-represented

THE SECOND RESPONDENT: No appearance

THE THIRD RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms A Frizelle

INDEPENDENT CHILDREN’S LAWYER: Ms H Mustaffa
HM Lawyers

Orders

1. That the mother have sole parental responsibility for long term issues concerning the children, X WARNISH born … 2007, Y WARNISH born … 2008 and Z WARNISH born … 2010 (“the children”).

2. That the children live with the mother.

3. That the children have no contact with the father.

4. That the children have no contact or communication with the Second Respondent or any member of the father’s family.

5. That the children be henceforth known as X CRESSWELL, Y CRESSWELL and Z CRESSWELL and that the mother be at liberty to approach the Registrar of Births, Deaths and Marriages in the State of Queensland to have such change of name recorded on the children’s birth certificates.

6. That pursuant to s 11(1)(b) of the Australian Passports Act 2005, the children are permitted to travel internationally.

7. That pursuant to ss 7 and 11(1)(b) and 11(5)(b) of the Australian Passports Act 2005 (Cth), the children are to be issued with an Australian Passport, notwithstanding the fact that the consent of the father for the issue of the passport for the children has not been obtained.

THE COURT FURTHER ORDERS ON A FINAL BASIS:

1. That the children have no communication with the father.

2. That the Applications by the Second Respondent and the Third Respondent be dismissed for want of prosecution.

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

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cresswell & Warnish and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4091 of 2013

Ms Cresswell

Applicant

And

Mr Warnish

First Respondent

And

Ms Warnish

Second Respondent

And

Ms Chamberlain

Third Respondent

REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. These proceedings commenced in this Court by an Application of the mother made 29 December 2017.  They relate to three children, X born … 2007, who is now 12 years of age, Y born … 2008, who will be turning 11 shortly, and Z … 2010, who is nine and a half.  The children are the only children of the relationship between the Applicant mother and the Respondent father.

2. The father was convicted of his plea of guilty of a number of serious sexual offences against the children.  The descriptor by Ms Firth, Counsel for the mother today, of the offences being “abhorrent” is apt.

3. I have read the sentencing remarks of the District Court judge delivered in early 2018 in respect of the offences.  They were clearly serious and, as a result, his Honour, for the reasons that were set out, sentenced the father to 10 years imprisonment.

4. The father did bring an appeal to the Court of Criminal Appeal.  However, that appeal was dismissed in mid 2018.  I have read the remarks of the Court of Criminal Appeal.

5. As a result of the criminal charges and convictions, the father will not be available for release on parole before 2026, by which stage, it should be noted, that at least the two oldest children will be adults.

6. To some degree, these proceedings have been prolonged, not as much by the conduct of the father but, it seems, the Applications of the paternal grandmother, Ms Warnish, and the paternal aunt, Ms Chamberlain.

7. They were given leave to intervene in these proceedings by a Registrar, and were involved in family report interviews conducted by Ms A on or about 30 and 31 October 2018.  That report dated 27 November 2018 is before the Court and has been marked Exhibit 4.  I have read that report.

8. When the matter was listed by me for trial at a call over of cases awaiting hearing on 27 June 2019, the matter was listed for hearing today.  I can specifically recall informing the Second and Third Respondents that they would be required to attend personally.  I can specifically recall the paternal aunt indicating that she has work commitments and may not be able to attend, and that her mother, who is the father’s mother, of course, has health issues and she may not be able to attend.  I specifically indicated that if they did not attend their application may not be able to proceed.

9. The time the children, if any, were to have with the grandmother and aunt was one of the issues I identified in the notation to my Orders of 27 June 2019.  Because of the remarks made by the parties in an email to the Court forwarded on Friday, 18 October 2019, I have dismissed their applications, which were by way of Responses, for want of prosecution.  No actual proper explanation for their failure to attend was given other than the work priority of the aunt and the health obligations of the grandmother prevented them from appearing and also presenting their case.

10. That then left us in the situation where the competing applications today were those of the Applicant mother identified most clearly, it seems, in the case outline that she filed in this Court and was relied upon with her new solicitors on 14 October 2019.

11. Although the father says he did not receive a copy of that on 14 October 2019, I am satisfied that it was filed in the Court and no doubt every attempt to have the matter transmitted to him whilst he was in prison was made.

12. The orders sought by the mother in her Application are set out, as I say, in the case outline.  In essence, orders 1 and 2 (for sole parental responsibility and residence) have already been made final orders with the consent of the father by Senior Registrar Spink on 1 May 2018.

13. The father was aware of that order and today, he appearing personally with the support of members of the Department of Corrections who accompanied him to Court today, he acknowledged as much.

14. The other applications that the mother sought in her case outline relate to what could be seen to be, in respect of paragraphs 5, 6 and 7, facilitating orders allowing the change of name that the mother seeks the children to now have to her birth name of “CRESSWELL” and to facilitate Australian passports being obtained.

15. I say that, because it is clear that the order made by Senior Registrar Spink granting the mother sole parental responsibility should, on its face, be sufficient for the mother to exercise that parental responsibility; a change of name, for example, being a specific described major long-term issue in section 4(1) of the Family Law Act 1975.

16. Nonetheless, as Ms Firth indicates, and as the Court has, on occasions, also come across, a more specific order is sometimes required by State and/or Federal administrative authorities to effect the change, and so the orders will be made.  The father, after I explained certain things to him, indicated that he did not wish to contest the orders sought by the mother.

17. In that regard, as I say, orders 1 and 2 have already been made.

18. So, to the extent it is necessary, the first order I will make today is that the applications by the Second Respondent, Ms Warnish, and the Third Respondent, Ms Chamberlain, be dismissed for want of prosecution.

19. Order 3 is that the children have no contact or communication with the father.

20. Order 4 is that the children have no contact or communication with the Second Respondent or any member of the father’s family.

21. The father said he does not oppose that order being made.  I sense he is a little disappointed that his mother and sister are not here to pursue their applications.  They say they would like time to occur.  It seems that, to some level, the mother has facilitated time by telephone on special occasions between the extended family.  I am not going to impose any obligation on the mother to do that in the future, letting her good judgment to be the best guide.

22. Accordingly, I make the orders sought in the mother’s orders and, just for completeness, incorporate them in one order rather than to refer to an earlier order.

23. The father, who represents himself today, indicated during our discussions, as the transcript would reveal, that he would like the opportunity to send to the children a card at the time of their birthday and/or at Christmas.

24. I stood the matter down to allow the Counsel and solicitor for the mother to take instructions as to her position in that regard.  Upon return to the Court, Ms Firth, on behalf of the mother, indicated the mother opposed such an order being made, and delivered oral submissions as well as providing me with written submissions, which I have now read.  She opposes any order being made.

25. Ms Frizelle, Counsel for the ICL, supported and adopted many of those submissions, and added further oral submissions.  I gave the father a last opportunity to be heard on what was essentially an oral application, which had not otherwise been identified in the material, but with a view to having  complete closure of this matter as best as the Court can achieve, and I allowed that application to be progressed.

26. The order the father seeks essentially is like any other parenting order.  The paramount consideration is the best interests of the children, but not the only consideration.

27. I have taken into account the submissions I have heard, and have also had the opportunity to consider:

    a)the sentencing remarks of the District Court Judge in respect of the father’s conduct and violation of these children;

    b)the report by child psychiatrist, Dr C dated 21 August 2019, which reported on how Y, who has been seeking additional psychiatric assistance, has been making excellent progress in addressing “her anxiety and trauma”;

    c)the report of psychologist Ms D dated 21 August 2019, that reported in respect of therapy that has apparently since stopped but had occurred for some time in respect of all three girls.

28. I also, in conjunction with the sentencing remarks of the District Court Judge, read the mother’s victim impact statement, which is attached to her affidavit.

29. It is worth noting, of course, that the family report conducted by Ms A, in respect of interviews on 30 and 31 October 2018 (dated 27 November 2018), was prepared without the benefit of the child psychiatrist report, which I have seen, and the psychologist’s full report, which I have also now seen.

30. Nonetheless, the family report writer, for the reasons identified in her report, which I do not go into at any great length at this stage, at paragraph 96 recommended “no contact between the father and the children, telephone or otherwise”.

31. Whilst it is not clear to me that the report writer’s recommendation considered the effect on the children of receiving something in writing from the father at birthdays or at Christmas, nonetheless, as Ms Firth says, the other evidence makes it clear that any contact, even electronically or by cards, could have a very significant effect upon the children’s progress and development.

32. I gave the father an opportunity to tell me why, having raised the issue, the order should be made.  The transcript will show, in my view, the same lack of insight that is referred to effectively by the District Court Judge and by the family report.  There is, in my view, something to be said about the father still being unable to take full responsibility for his actions and not understanding the effect of his actions upon these three girls.

33. It is also my view, having read the victim impact statement, a matter of some significance that the mother is the primary carer of these children and, in view of the father’s incarceration, likely to be for the rest of their infancy.  Her capacity to parent these children is fundamental to the welfare of the children.  On balance, it would not be in the best interests of the children to make any order that could affect their future development.

34. I have already made the observation that, of course, when the children are 18 and knowing full well that they do have a father who, by the time they are young adults, will have been released from prison, as to what attempts at all they make to contact him will be a matter for them.  That will be a matter for other laws at other times.  Any orders the Court makes today, being final parenting orders, can only have effect, of course, until the children reach their majority at age 18.

35. For these reasons therefore, I make the orders by consent that the father indicated he does not oppose, and I do not make the order sought by the father orally today to be able to send to the children cards to them at their birthday or at Christmas.

36. I will discharge the ICL.  I do not think there is anything else.  That deals with the matter.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 21 October 2019.

Associate: 

Date:  8 January 2020