DUNCAN & GRIFFITH
[2013] FamCA 25
•24 January 2013
FAMILY COURT OF AUSTRALIA
| DUNCAN & GRIFFITH | [2013] FamCA 25 | ||
| FAMILY LAW - CHILDREN – Parental Responsibility –– Where Father has failed to show he is capable of advancing the welfare of the children – Mother to have sole parental responsibility of children. FAMILY LAW - CHILDREN – With whom the children spend time – Best interests of the children – Where Father has not shown he is capable of increasing and reinforcing his relationship with the children on an unsupervised basis – Children to live with Mother – Children to spend supervised time with Father – Father required to show that unsupervised contact will be for the benefit of the children and his relationship with the children. | |||
| APPLICANT: | Ms Duncan | ||
| RESPONDENT: | Mr Griffith |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Dooley, Solicitor |
| FILE NUMBER: | BRC | 1105 | of | 2011 |
| DATE DELIVERED: | 24 January 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Bell J |
| HEARING DATE: | 24 January 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | The Applicant Mother appearing in person |
| COUNSEL FOR THE RESPONDENT: | There being no appearance by the Respondent Father |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Mr Ashcroft of Counsel appearing for the Independent Children’s Lawyer |
Orders
ON AN UNDEFENDED BASIS IT IS ORDERED:
That all previous Orders be discharged.
That the children, M born … November 2001 and E born … September 2003, live with the Mother.
That the Mother have sole parental responsibility for the children.
That the Father spend supervised time with the children at B Contact Centre on the Gold Coast (the ‘Contact Centre’) for not less than two (2) hours every eight (8) weeks and that the parties equally shall share the cost of the supervised time.
That the Father is hereby restrained from using alcohol or illicit drugs for twelve (12) hours before contact with the children at the Contact Centre.
The Father shall inform the Mother of his mobile telephone number and shall accept calls from the Mother in relation to the Father spending time with the children at the Contact Centre.
That the Father communicate with the children between 5:00 pm and 5:30 pm (Queensland time) each Monday by telephoning the Mother on her nominated telephone number and the Mother shall facilitate the telephone call and ensure that the children have privacy during telephone time with the Father.
That the Mother authorise any school attended by the children to release directly to the Father school reports regarding the children, except their residential address.
That the Father is restrained from attending at the Mother’s residence, the children’s school or asking the children to disclose their residential address.
That neither party shall denigrate the other in the presence or hearing of the children or permit others to do so.
That upon the Father providing the Mother with a certificate of his completion of the Triple-P Parenting Course ordered on 10 October 2011, the Father is at liberty to file an application seeking orders for unsupervised time with the children and such application is to be served on the Mother as required by the Family Court Rules.
That the Independent Children’s Lawyer be discharged.
Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.
NOTATION:
The Father was informed by letter dated 10 January 2013 from the Independent Children’s Lawyer of the consequence of Order 3 of the Orders made on
20 July 2012, and that in the absence of any trial material filed by the Father, the matter could proceed on an undefended basis.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Duncan & Griffith has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 1105 of 2011
| Ms Duncan |
Applicant
And
| Mr Griffith |
Respondent
REASONS FOR JUDGMENT
This is an application on the part of Ms Duncan for parenting orders in relation to two children of her association with Mr Griffith, hereinafter referred to as the respondent. These children are M, born in November 2001 and E, born in September 2003. This matter has had rather a chequered career in this court and has been going for a considerable period. I think the first of the orders of the court were as far back as 2005 and since then, there have been quite a few orders and in particular, I refer to the order of 20 July 2012, made by Kent J in which, inter alia, he ordered (see order 3).
In the event that the respondent does not file any material in accordance with the directions made, the matter may be heard in the absence of any such material and on an undefended basis. The respondent father has been called in the precincts of the court at about 10.00 am this morning. He has failed to appear. He did indicate, as I understand, in some correspondence and/or contact with the independent children’s lawyer that he would be seeking an adjournment as a result of some difficulties he is labouring under. I also understand that that was put before one of our Registrars.
He was informed, on my instructions, that if he wished to seek an adjournment, he would have to file an application and support it by evidence to show why it should be. He has not appeared and as a result thereof, I put into force and affect the order 3 of Kent J, referred to hereinbefore. We are fortunate in having Ms S here today. Ms S has done two family reports, the last of which was June last year, in which in-depth analysis by herself of the attitude of the boys towards the father, of the father’s attitude toward the boys and towards the mother is set out therein.
I make it quite clear that I have read both of those reports and I have had great assistance from them. It is quite clear, on the material before me and taking into consideration the provisions of section 60CC, that these children were somewhat afeared of their father. I do not believe, at this stage, it is necessary for me to find a reason for such fear, but they were.
However, subsequently, contact between the father and the boys has taken place in a contact centre at intervals of about six to eight weeks and it is quite clear what Ms S has said and what the mother has said, that the boys are now developing a relationship between their father and themselves and that they feel comfortable in the form of contact that has been available and that they no longer exhibit any fear in the present surrounding circumstances.
Naturally, of course, there are other matters under section 60CC which I am directed to take into consideration, but I am also of the view that if I have a view that there is, in the best interests of the children, the fact that there should not be unsupervised contact at this stage between the children and the father, I think that is more than sufficient compliance with section 60CC and there is evidence to support it and I am of that view. The independent children’s lawyer has put before me the case information document, in which a suggested order was put forward, in that the father (see paragraph 5 of the document which is annexure A).
It says that upon the father producing to the mother a certificate of his completion of the Triple-P parenting course, ordered as far back as 10 October 2011, the father shall spend unsupervised day time with the children on the Gold Coast from 9.00 am until 5.00 pm on a weekend day or non-school day, upon the father giving the mother not less than two weeks notice in writing of his desire to spend time with the children on a given date. I am opposed to that suggested order on the part of the independent children’s lawyer and I am supported by the mother and particularly, insofar as Ms S is concerned.
At this stage, the onus should be upon the father for him to show, not for the court not to show, but for him to show that he is capable of advancing the welfare of the children, of increasing and reinforcing his relationship between the children on an unsupervised basis by his doing those things which he ought to have done as far back as October 2011, that is, undergo a Triple-P parenting program. He has not done so on the evidence before me and may I make it quite clear, he has not put any evidence before me. In those circumstances, I am more than satisfied that the children should reside with the mother and that she should be the person solely responsible for the welfare of the children.
I think it is to the children’s advantage that they continue to have contact with their father. They are getting along, M will be 12 this year and it is important and it is their right that they know their father and they know their father in the best possible surroundings. In the circumstances, consequently, I would order that the supervised contact continue in the form by which it already exists and that is, that he do have contact with the children at B Contact Centre once on each six to eight week period for –
RECORDED : NOT TRANSCRIBED
- not less than two hours.
I further order – and this is a matter which I have discussed with the parties and with Ms S, who does not object to it – that it is important that this matter be finished, as far as possible, not only for the court’s benefit but particularly insofar as the children are concerned. But, I am concerned about whether the father should have unsupervised contact and I think the onus should shift to him, as I have already partially indicated before. He has got to do something to show that the unsupervised contact will be for the benefit of the children and for the benefit of his relationship between himself and the children.
In those circumstances, I would order, as I have already done so but will further order that, upon the father completing a Triple-P parenting course, he may be at liberty to make application to this court for an order in relation to unsupervised contact. Naturally, of course, it would have to be filed in this court and served upon the applicant mother. Insofar as Rosa and Rosa [2009] FamCAFC 81 is concerned, there is some complaint by the father, he living on the Mid North Coast of NSW and the supervised contact taking place on the Gold Coast, that there is some difficulty for him. He said it took five hours or something of that nature, round trip.
I, unfortunately, consider that notwithstanding there is the tyranny of distance, that the practicality of the contact is capable of taking place and is quite proper in all the circumstances. Taking into consideration the material before me, that the contact, as ordered at this stage, is significant and substantial. Insofar as other matters which have been raised by Mr Ashcroft of counsel, who appears on behalf of the independent children’s lawyer, there should be an order restraining the father from contacting the mother, other than in accordance with the order.
I am of the view that the school at which the children attend should be authorised by the mother to forward to the father the school reports on the children, such reports not to disclose the mother’s address and further, in accordance with the draft supplied by the independent children’s lawyer, in draft orders 6, 7, 8, 10, save that I delete “shall accept calls from the father when he is spending time with the children” and 11.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 24 January 2013.
Associate:
Date: 24 January 2013
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