DRAPER & SHINE

[2011] FamCA 119

FAMILY COURT OF AUSTRALIA

DRAPER & SHINE [2011] FamCA 119

FAMILY LAW - CHILDREN – living with – spending time with

APPLICANT: Ms Draper

RESPONDENT: Mr Shine

INDEPENDENT CHILDREN’S LAWYER: Parker Family Law

FILE NUMBER: BRC 9804 of 2009

DATE DELIVERED: 17 February 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 17 February 2011

REPRESENTATION

FOR THE APPLICANT:	No appearance
SOLICITOR FOR THE RESPONDENT:	Gary S Rolfe

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Green

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Parker Family Law

Orders

1. All previous orders made in this matter are discharged.

2. The children L born … December 2005 and B born … May 2007 live with the father.

3. The children spend time with the mother at the C Contact Centre for a period of 2 hours each Saturday or at such other times as may be facilitated by the C Contact Centre.

4. Each parent shall:

4.1.Contact the C Child Contact Centre within 7 days of the date of this Order and arrange an appointment for assessment for suitability for supervised time.

4.2.Attend the assessment.

4.3.Comply with any appointments made by the contact centre for supervised time.

4.4.Comply with all reasonable rules of the contact centre.

4.5.Comply with all reasonable requests or directions of the staff of the contact centre.

4.6.Pay one half of any fees for the supervision on each occasion of supervision.

4.7.Use a communication book.

1. The children may communicate by telephone with either party at all reasonable times.

2. The parties are restrained and an injunction issue restraining the parties from denigrating the other or allowing any other person to denigrate the other in the presence or hearing of the children.

3. The parties are restrained and an injunction issue restraining the parties from physically disciplining the children or allowing any other person to physically discipline the children.

4. Each party shall keep the other informed of their residential address and contact telephone number.

5. Each party shall immediately advise the other of any medical emergency that may affect the children.

10.  These Orders shall act as an authority for any of the children’s medical, dental, day care, education or other such providers to provide to either parent information or copies of records, reports or paper writings as may relate to the children and same will be provided to the requesting parenting at the cost of that parent.

11.  Each party shall keep the other informed of the name, address and telephone contact number of the children’s medical, dental, day care, education and other providers.

12.  The Independent Children's Lawyer is discharged.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9804 of 2009

Ms Draper

Applicant

And

Mr Shine

Respondent

REASONS FOR JUDGMENT

1. The parties in this case, being the applicant, Ms Draper (“the mother”) and the respondent, Mr Shine (”the father”) have between them some 14 children, not as a result of the relationship between themselves.  The names of the various children are set out, as I understand, in the case outline for the ICL.  They commence with D, 1986, and continue down to B in the year 2007 – an enormous number of children.  However, the parties being, as I said, Ms Draper and Mr Shine, cohabited for some time.  As a result of this cohabitation, two children were born, L December 2005 and B, born May 2007.

2. There are allegations and counter-allegations which are contained in the material put before me by the father, the mother having not seen fit to appear here today notwithstanding the fact that she has had notice of the date and that her name was called three times in the precincts of the Court.  Needless to say, this is not satisfactory for children of such a young age.  I have had the assistance of the independent children’s lawyer’s work on this and they have had put before me three affidavits in particular - three affidavits, that being the family consultant, Ms F’s report, a Ms I, who is employed by the Department of Child Safety and also Mr J, who is a well-known psychologist.

3. Mr J was, of course, obviously hamstrung because he had no input from the mother.  She did not appear for the appointment, and according to what she told Ms F, she had forgotten about it.  Mr J sees nothing wrong with the father insofar as his expertise is concerned.  Ms I’s affidavit is concerning in that it shows the desperate, I believe, effects upon these children wherein up until about September of last year, they were de facto separated and from 16 July 2010 by my order, this de facto separation was dignified by that order.  However, in September of last year, an application came before the Principal Registrar in relation to this matter and the applicant mother indicated in perhaps fruitful and colourful language that she was no longer interested in the matter and she left the Court, some people would say, under a cloud.

4. She has not had any contact with the children since that time and there has been little or no, I understand, contact of any form by the father with her save for an email and perhaps what he alleges from the bar table are nuisance telephone calls.  I have had in particular the opportunity of reading the three affidavits to which I have referred.  Ms F, in her usual in depth and quite proper form, has set out her concerns and, in particular, she is concerned with the attachment of B, the youngest of the two, to the mother.  See paragraph 82. 

5. In her recommendation, she appears to sort of bounce the ball into the air and hopes that someone will catch it before it hits the ground wherein she says, since she herself has not had the opportunity of having an in-face interview with the mother - I think she had it by way of telephone - she indicates the difficulty of coming to any firm conclusions.  See paragraph 85.  And she notes - this is the only evidence before me - that the parties to a certain extent had worked out some way of having the contact between the children maximised with as little angst as is possible. 

6. It appears as though the parental conflict has been shielded from the children.  She recommends basically that should the mother not be using drugs and that her psychological assessment indicates that she is able to more appropriately manage stressors and continue to maintain the child focus, she would recommend that the children reside with the mother.

7. Unfortunately, events have overtaken that recommendation on the part of Ms F.  She has earlier in her report indicated to the fact that the mother appeared to have been worn down by the continued stress.  Ms F noted that her suspicion was that the mother’s admission that:

   She feels like giving up the fight. Letting [the father] have the child, have the boys, is closer to the mark and her forgetting the psychologist’s appointment and refusal to submit to drug testing -

   is part of this giving up.  It appears to me, unfortunately, on the evidence, that she has given up and also, I must say, on the lack of evidence from her, that she has given up.  There is some suggestion from the bar table that she has returned to Victoria.  I say returned to Victoria because I think at least a couple of her children are resident down there, but that nothing other than the matters to which are herein before referred have been heard from her.

8. The children have not seen their mother since mid September of last year.  This is tragic for them.  It is not tragic for the mother or the father but it is tragic for them.  Children have the right to know their parents and they should not in any way be precluded from so doing.  I have already indicated through his solicitor to the father that he better watch himself; that is not for him to alienate the affections of the children.  Let them find out in the fullness of time.  There has been put before me by the independent children’s lawyer a quite proper form of order which is accepted by the applicant, save that he seeks a further order that there be sole parental responsibility.

9. As is well known, the Act at present indicates that parental responsibility is to be shared and that there is a presumption to that effect and it is for me to determine whether such presumption should apply or not.  I initially was of the view that since she has shown little or no interest in the children, that it would be preferable that the father have sole parental responsibility to be able to do those things that are within that field.  Green of counsel on behalf of the independent children’s lawyer has indicated to me that it might be preferable - and he submits that it is preferable - that the children are allowed to recognise that the mother still has some parental responsibility particularly insofar as B is concerned, who was much closer to the mother than to the father.

10. B is very young.  He is not yet four.  He will be four in May and he is really only just a baby.  It is quite tragic that these children are having no contact with their mother.  It is not, at this stage, I am satisfied, the fault of the father that there is no contact between the children and the mother but that the mother has determined to, as was foreshadowed by Ms F, to give up.  Insofar as the matter of Rosa is concerned or where this is question of presumption of parental responsibility is concerned, I have to determine whether, even on a consent order, that there should be contact of a significant and substantial amount and that such contact should be reasonably practical.

11. The contact proposed by the independent children’s lawyer as has been considered by Ms F, that is, that there be some form of contact at a contact centre, and I consider that this is the best that we can possibly do in all the circumstances, and in the circumstances such contact would be significant and substantial.  Whether it is reasonably practicable or not is entirely a matter for the mother.  She is the one who has left.  We do not know where she is.  She has not assisted the Court with any information at all and as a result thereof I could in all probability find that the contact would not be reasonably impracticable.  But that that was a matter totally within her province and I do not believe that the Court could be restrained from making an order. 

I certify that the preceding eleven 11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 17 February 2011.

Associate:     

Date:              2 March 2011