Darby and Alison and Anor

[2009] FamCA 473

FAMILY COURT OF AUSTRALIA

DARBY & ALISON AND ANOR [2009] FamCA 473

FAMILY LAW – CHILDREN – With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT: Ms Darby

1^st RESPONDENT: Mr Alison

2^nd RESPONDENT: Ms Alison

INDEPENDENT CHILDREN'S LAWYER: Ms McArdle

FILE NUMBER: BRC 3447 of 2008

DATE DELIVERED: 29 April 2009

PLACE DELIVERED: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 29 April 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Billimoria
Emerson Family Law

1^ST RESPONDENT: Mr Alison appears on his own behalf

2^ND RESPONDENT: Ms Alison appears on her own behalf

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER

Ms McArdle

Legal Aid Queensland

Orders

IT IS ORDERED THAT:

1. The matter be adjourned to the Magellan Directions List before Justice Murphy at 10.00am on 13 August 2009 in the Brisbane Registry of the Family Court of Australia.

2. The paternal grandmother and the father have leave to attend the hearing on 13 August 2009 by telephone.

AND IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The father communicate with the child … born … December 2004 (“the child”) by handwritten document sent to the child via the Independent Children’s Lawyer.

2. The mother provide to the father no less than ten (10) photographs of the child in each calendar year such photographs to be sent in the first instance to the Independent Children’s Lawyer who is directed, unless anything in the photographs are considered not to be in the best interests of the child, to forward such photographs to the father at his current address for service and the first of such photographs to be provided within seven (7) days of the date of this Order.

3. The mother provide within seven (7) days of the date of this Order all documents in her possession in relation to the child’s health, education and any extra curricular activities which she participates in at the present time.  The mother is directed to provide such documents to the Independent Children’s Lawyer and the Independent Children’s Lawyer is directed to make copies of those documents and to remove all such details as might identify the whereabouts of the mother and/or the child and thereafter to forward those documents to the father.

4. The father’s application to speak to the child for at least 10 minutes each Sunday morning is dismissed.

IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

AND IT IS NOTED:

Pursuant to previous orders, the Independent Children’s Lawyer will attempt to facilitate an updated Family Report from Ms Q as soon as possible.

IT IS NOTED that publication of this judgment under the pseudonym Darby & Alison and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3447 of 2008

MS DARBY

Applicant Mother

And

MR ALISON

1^st Respondent Father

And

MS ALISON

2^nd Respondent Paternal Grandmother

EX TEMPORE

REASONS FOR JUDGMENT

1. The father, who is presently incarcerated in a prison in Tasmania and has been so since April 2008, makes a number of applications pursuant to a handwritten document ordered to be provided by me and subsequently filed on 9 March 2009. 

2. In that document the father seeks four specific orders:

   (1)speak to [the child] for at least 10 minutes every Sunday morning;

   (2)keep updated on all health, education, interests, and other such things relating to [the child’s] life;

   (3)get photos, at least 10, of [the child];

   (4)speak to [Ms Darby] (the mother) for at least 10 minutes every Sunday morning to discuss [the child] and resolve custody issue.

3. There then follows three paragraphs in which the father, as requested by me, sets out his reasons why the orders should be made:

   "(1) I have not seen or spoke to [the child] since November 2007.  [The child] was living with me from October 2005 to then and I did all the normal father stuff with her.  [The child] has a large family and community base here in Tasmania and a relationship with myself is in her best interests; (2) [the child’s] mother has made outrageous allegations against me that are not true.  I am currently in prison and all phone calls are recorded for the 10 minute period maximum time limit.  This should quell any concerns the Court may have about inappropriate and/or violent issues; (3) I am trying my hardest to resolve this custody issue out of Court where myself, [the mother’s], and especially [the child’s] best interests may be resolved".

4. The application occurs in circumstances where on 29 August last year Ms Q has prepared a family report.  She says in that family report at para 61:

   "The parents' dispute has come about because of the mother's relocation to Brisbane.  She alleged the father was seriously violent toward her throughout their relationship.  The mother said she ended the relationship.  The father alleges the mother left to avoid facing him following her betrayal of him to the police.  According to him the mother is a habitual criminal and taking [the child] away is vengeance against him". 

5. Just that paragraph alone indicates the nature and extent of the issues that are likely to be directly relevant to the child’s best interests at a trial. 

6. The child was born in December 2004, and is currently then about 4½, and was about 3 when she last saw her father.  She remains, then, very young.  She remains, also, vulnerable.

7. It is clear - at least implicitly - from what the father alleges, supported it seems, by his mother who has now intervened in the proceedings, that he alleges that false allegations are made about him by the mother and that the mother is in turn seeking to use false, or perhaps exaggerated, allegations as a means of denying him time with his daughter.

8. The mother on the other hand alleges, as is evident from the report of Ms Q, a long history of violence.  She alleges that the father has a previous criminal history which involves offences of violence; that she is in fear of him, and that as a result of those matters she is concerned that even 10‑minute phone calls with the child, risk him saying things to the child which are inappropriate and also, inferentially at least, causing upset to her.

9. I will not make the order at paragraph (4).  The apparent desire of the father to initiate conversations with a view to attempting to resolve all parenting issues with the mother is commendable, and ought reasonably be pursued. But, the allegations made by the mother against the father are serious. It is utterly inappropriate to order the mother to have personal contact with the mother should she choose not to. The mother is represented by legal practitioners in these proceedings.  Negotiations can be undertaken with her lawyers at any time and, or course, should occur.

10. There are, clearly enough, significant restrictions consequent upon the husband being a prisoner which may attach to his capacity to make contact with the mother’s lawyers at the present time, whether it be by way of correspondence or by way of phone call. The father alleges other difficulties have been put in the way of him contacting the mother or her lawyers.

11. It seems to me, however, that to the extent that prison regulations provide for it, there is nothing to prevent the father sending to the Independent Children's Lawyer all such communications in relation to the matters that he would like to discuss with the mother. As I said to him during the course of discussion, the Independent Children's Lawyer would be obliged to pass those on unless independently arriving at a decision that doing so was completely contrary to the child’s best interests.

12. Next, in respect of the provision of photographs the mother consents to an order in terms identical to those made in respect of the paternal grandmother; namely the provision of 10 photos each calendar year.  Furthermore, she consents, at my suggestion, to an order that the first 10 of those photographs be provided to the Independent Children's Lawyer for communication to the father within seven days of today.

13. Next, in respect of the order sought by the father that he be kept updated on all health, education, and other matters of interest to him as a co-parent of the child, the mother expresses a concern emanating from her assertions as to violence and the like about any such documents disclosing her and/or the child’s whereabouts. 

14. It seems to me, however, that documentation could be provided to the Independent Children's Lawyer.  I can take, it seems to me, judicial notice of the fact that Independent Children's Lawyers are acutely aware of all issues emanating from assertions of violence and concerns emanating from those allegations. With the mother's consent copies of those documents be made and identifying details as to place, et cetera, be omitted by the Independent Children's Lawyer.

15. I propose to order, then, that the mother provide, within seven days of the date of this order, all documents in her possession relating to the child’s health, education, (which in her case would be a reference, I presume, to any childcare facility or kindergarten she attends) and any extracurricular activities which she participates in at the present time.

16. I direct her to provide those to the Independent Children's Lawyer.  I direct the Independent Children's Lawyer to make copies of each such document and to remove from the documents all such details as might identify the whereabouts of the mother and/or the child, and, thereafter, forward those documents to the father.

17. That leaves for consideration the issue of the child speaking to her father for at least 10 minutes every Sunday morning.  It seems to me that the issues in this case which I have encapsulated, albeit extremely briefly, raise for consideration by the Court a number of issues.  I note in that respect that the paternal grandmother has indicated that both parties have a history of having been gaoled and that this is something, at least in respect of the father, that “[the child] will just have to get used to”.

18. It seems to me that a family report-writer, and perhaps other evidence, might well address issues which the Court is mandatorily directed to take into account, not least of which (apart from the obvious issues of potential harm in all its senses as used in the Family Law Act) is the responsibilities of parenting exhibited by each of the parties.

19. It seems to me that the submission made by the Independent Children's Lawyer is right and, in circumstances where the father remains incarcerated and where he has not seen a very young child since November 2007, that, notwithstanding what he says are the means by which any risk to her might be measured, the risks are in fact broader than that and need to be analysed and determinations made about them at a trial. 

20. For those reasons, I reject the application by the father for him to speak to the child for at least 10 minutes every Sunday morning.

21. I will adjourn this matter to the Magellan directions list at 10 am on 13 August 2009, and I note that pursuant to earlier orders made by me the Independent Children's Lawyer will attempt to facilitate an updated family report from Ms Q as soon as possible.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  4 June 2009