Delvan and Hoogley

[2010] FamCA 216

FAMILY COURT OF AUSTRALIA

DELVAN & HOOGLEY [2010] FamCA 216

FAMILY LAW - CHILDREN - Family violence - Firm conclusion that the continuation of proceedings in respect of children is plainly detrimental to them

Family Law Act 1975 (Cth) Division 12A, s 69ZN, s 69ZW, s 121(9)(g)

APPLICANT: Ms Delvan

RESPONDENT: Mr Hoogley

INDEPENDENT CHILDREN’S LAWYER: Ms McArdle

FILE NUMBER: BRC 9606 of 2008

DATE DELIVERED: 26 February 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 26 February 2010

REPRESENTATION

THE APPLICANT No appearance

THE RESPONDENT No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid Queensland

Orders

IT IS ORDERED THAT

1. The application initiating the proceedings filed by the mother on 22 October 2008 and the amended application filed by the mother on 4 March 2009 be struck out.

2. The response filed by the father on 21 November 2008 and 30 March 2009 be struck out.

3. All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

4. The Independent Children's Lawyer be discharged.

5. Should either the mother or father seek to file a further application for parenting orders with respect to the children A born … October 1998 or K born … July 1993 they shall first seek leave of the court in order to do so and accompany any such application with an affidavit explaining their reasons therefore.

IT IS DIRECTED THAT

1. To the extent that the exception provided for in Section 121(9)(g) of the Family Law Act 1975 or the other provisions of that subsection do not otherwise authorise same, the Independent Children's Lawyer shall provide a copy of the Orders and Reasons for Judgment of today by Justice Murphy, to each of the parties and to an authorised officer of the Department of Communities (Child Safety Services).

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9606 of 2008

MS DELVAN

Applicant Mother

And

MR HOOGLEY

Respondent Father

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter has a long history which, for current purposes, relevantly commences with Carmody J making an order on 16 February 2007.  Now, over three years later, the court continues to have applications for parenting orders by each of the parents before it.

2. However, despite the fact that the mother first sought orders, consequent upon Carmody J’s orders, about 18 months ago, she has failed to appear in prosecution of that application on at least three or four occasions.

3. The matter was designated as a case appropriate for inclusion in this court’s Magellan list by Registrar Turner on 16 April 2009 and the usual orders, including the preparation of a family report, were made.  Included among those orders was an order that the mother file a Form 4 outlining the abuse she says has been perpetrated upon the children by the father.

4. She has failed to file that document at any time in the approximate 12 months since.

5. Interviews for the preparation of the family report were organised by Ms D, family consultant.  Despite Ms D’s best efforts, the mother and children have failed to attend upon interviews resulting in that report being unable to be completed.

6. The father’s position, as last outlined, seems to be linked with action which the Department of Communities (Child Safety Services) may or may not take.  There was a suggestion at one time that the paternal grandparents would participate in the proceedings.  They indicated that, if it were a matter of the children being placed into foster care, then they would seek to have the children with them, but not otherwise.

7. A report has been prepared by the Department, pursuant to section 69ZW of the Act, outlining the history of its involvement with this family.

8. Suffice to say, in the current context, that this report reveals a significant atmosphere of family violence which is very troubling to this court (and, indeed would be, I suspect, to any other court).

9. It is interesting to observe that the father did not attend this morning.  He apparently attended the court yesterday in the mistaken belief that his appearance was required then.

10. Today, however, he is unable to attend because he is required at the Magistrates Court in order to deal with criminal charges that, I’m told, involve alleged violent activity towards one of the children.

11. The Family Law Act, and in particular Division 12A of the Act, can be seen generally to, among other things, evince a requirement on the part of this court to deal with parenting applications in a way that causes the least possible distress to children the subject of them.

12. That general tenor is reinforced, for example, in the duties required of the court, pursuant to section 69ZN of the Act.  Among the principles mandatorily imposed upon the court for the conduct of child-related proceedings is a principle that the court is to:

    …consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.

13. As if to underline and reinforce that mandatory responsibility, the section goes on to provide that the court is:

    …to actively direct, control and manage the conduct of the proceedings

    and, in section 69ZN(5):

    …to conduct proceedings in a way that will safeguard the children against family violence, child abuse, or neglect.

14. Whilst those statutory provisions can be seen to apply to the manner in which proceedings are conducted, the principles enunciated in that section and the general tenor of the legislation is, in my view, plainly to the effect that, if a court comes to a firm conclusion that the continuation of proceedings in respect of children is plainly detrimental to them, or contrary to their best interests, then the court ought intervene actively to prevent that occurring.

15. Here, the sad circumstances of these children is attended by a number of considerations that point to that conclusion.

16. First, and very significantly as it seems to me, each of the children have, on any view of it, plainly been exposed to significant circumstances of family violence.

17. The section 69ZW report prepared for this court by the Department of Communities (Child Safety Services) indicates a number of matters that are of profound concern, particularly insofar as they raise a risk of physical harm occurring to the children.

18. The report also refers to the family having a “history of ongoing pattern of parental alcohol misuse” and refers to a number of parental deficiencies, not the least of which is the capacity to deal with the behaviour of the children.

19. Those things said, the Department has been kept abreast of proceedings in this court with respect to parenting orders, and the investigations by the Department result in an indication to the court that the Department has no intention to intervene but will provide information that may be of assistance (which, of course, it has done by the provision of the section 69ZW report).

20. The children are currently living with their mother.  Those living arrangements are attended with significant difficulties, but there is, in fact, no judiciable challenge to that arrangement in the Family Law Act since orders were first made to that effect.

21. The evidence reveals that contact between the children and their father has been somewhat sporadic, and in recent times appears to have been limited to telephone contact.

22. In any event, in that respect, I note, as earlier indicated, that K is all but 17 and A is 11½.  Each of those children are plainly at an age where they can, within the confines of their respective maturity, instigate time with their father.

23. By reason of all of those matters it seems to me that this court’s job, proscribed as it is by the Family Law Act, is done.

24. For those reasons, I have made the orders that I have striking out each of the relevant applications and response.

25. I have, though, determined, by reference to the principles of natural justice, to afford the opportunity to each of the parties to convince a court that there are parenting orders that ought be made in the children’s best interests, should they wish to do so.

26. Given that neither the mother nor the father appears before me today, I will direct that the orders made by me and a copy of these ex tempore reasons, when edited, be provided to each of the parties and to the Independent Children’s Lawyer.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  22 March 2010