Finnegan and Larkin

[2012] FamCA 950

FAMILY COURT OF AUSTRALIA

FINNEGAN & LARKIN [2012] FamCA 950

FAMILY LAW – CHILDREN – where the father has filed a Notice of Discontinuance – consideration of what orders are in the child’s best interests – where father has not spent time with the child in over a year – where there are significant concerns regarding family violence perpetrated by the father – where there are allegations of sexual abuse of the child by the father – where orders made that the child live with the mother and spend no time with the father.

Family Law Act 1975 (Cth)

APPLICANT: Ms Finnegan

RESPONDENT: Mr Larkin

INDEPENDENT CHILDREN’S LAWYER: Ms Foley

FILE NUMBER: BRC 10733 of 2011

DATE DELIVERED: 12 November 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 12 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tucker

SOLICITOR FOR THE APPLICANT: McKays Solicitors

THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: DA Family Lawyers

Orders

IT IS ORDERED

1. That the child B (“the child”) born … December, 2004 live with Ms Finnegan (“the mother”).

2. That the mother have sole parental responsibility for the child.

3. That the child have no in person contact or indirect dealings with Mr Larkin (“the father”).

4. That the mother facilitate and encourage the child to spend time and communicate with his adult siblings and extended paternal family.

5. That the mother continue to ensure the child attend counselling with Dr C in accordance with the recommendations of Dr C.

6. That the mother refrain from denigrating or insulting the father, his partner, or any members of the paternal family in the presence or hearing of the child, and will use her best endeavours to ensure that others do not denigrate or insult the father, his partner or the paternal family in the child’s presence or hearing.

7. That the mother continue to attend upon her psychologist Dr D, at the recommendation of Dr D and continue to take medication as prescribed by her general practitioner Dr E.

8. That the father be and is hereby restrained from approaching or meeting the child, communicating or spending time with the child or approaching within 200 metres of any school, place of residence or employment of or other place occupied by B (born … December, 2004) and Ms Finnegan (born … April, 1968).

9. That the Court requests that the Australian Federal Police place the name of the child B (male) born … December, 2004, on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing the removal of the child from Australia in breach of these orders.  This order will expire on 6 December , 2022 (when the child attains the age of 18 years) and the child’s name will be removed from the Watch List as and from that date.

IT IS FURTHER ORDERED THAT

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

2. Following the expiration of the Appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

3. The Independent Children’s Lawyer is discharged upon the later of the expiration of the appeal period in respect of these Orders, or the hearing of any appeal.

4. 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.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10733 of 2011

Ms Finnegan

Applicant

And

Mr Larkin

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter was listed on the callover of matters awaiting trial which took place before me this morning.  At that callover, the Court was advised that the father who, until that time had represented himself, had filed a Notice of Discontinuance. 

2. The Court file reveals that the Notice was filed on 9 November 2012. It discontinued the whole of the case up to that point agitated by him (relevantly contained in an Amended Response to an Initiating Application filed 14 September 2012).  Earlier, the father had filed a significant amount of material.

3. The Independent Children’s Lawyer obtained a Family Report from Mr F, and his comprehensive report is annexed to an affidavit filed 22 August 2012.  The proceedings between the parties involve one child, B, born in December 2004. 

4. Previously, the matter was in the Federal Magistrates Court. Cassidy FM’s most recent order made on 9 May 2012, provides, at paragraph 4, that:

   …the Father…be and is hereby restrained from contacting any school, place of residence or employment of or other place occupied by [the child] and [the mother] other than such contact with the Mother’s solicitors as is necessary to facilitate the Father’s conduct of this case or pursuant to any subpoena.

5. As that order self-evidently indicates, there are a number of concerns raised in the material relating not only to the child’s best interests, but, also, his safety. 

6. Those issues, broadly described, for the purposes of these proceedings, in which orders are sought as a consequence of the filing of the Notice of Discontinuance by the father, emanate from concerns about the father’s violence perpetrated in, toward, or around the child and the mother, but also in respect of other members of the child’s extended family, including, for example, the father’s own sister.

7. The Department of Communities, Child Safety and Disability Services has had previous involvement with the family.  A formal order was made pursuant to State legislation, resulting from an episode of family violence that saw the mother admitted to the Royal Brisbane Hospital and the father detained pursuant to an emergency examination order.  That former order expired at the end of 2011, and proceedings have been alive since that time in the Federal Magistrates Court and, more recently, this Court.

8. The orders sought by the mother might be seen to have the unusual feature of precluding time and contact between the child and his father, including a provision for the mother to facilitate reasonable contact with the child’s extended paternal family. 

9. Some understanding of those orders might be gleaned from the fact that the father’s mother, her partner, and the father’s adult sister are all witnesses in the mother’s case, deposing to concerns about what might broadly be described as the father’s temper.

10. In that same context, it ought be mentioned that a protection order is alive pursuant to State family violence legislation, which expires at the end of next year.  The child and mother are named as aggrieved persons in that order, but, so too, are members of the father’s own family, including his mother and adult sister. 

11. The child last saw or spent any time at all with his father at the end of 2011, that is to say, almost 12 months ago.

12. When seen by Mr F for the purposes of the family report, the child was quite clear about not wanting to have any time with his father.  He expressed concerns about his father’s behaviour, both in respect of violence and also in respect of what might, again broadly, be described as sexual allegations. 

13. In that latter respect, the child has been seeing a psychologist, Mr C, and receiving therapy from him.  Mr C outlines in his report “disclosures” made by the child in respect of sexually inappropriate (touching) behaviour perpetrated by his father toward him. 

14. Those matters. briefly dealt with in these proceedings plainly give light and shadow to the substantive orders sought by the Independent Children’s Lawyer.

15. The orders contained in the mother’s case served upon the father and repeated most recently in the case information document, are effectively abandoned, save in two respects to which I will refer in a moment, in favour of the mother joining with the Independent Children’s Lawyer in asking the Court to make the orders contended for by the Independent Children’s Lawyer.

16. The Independent Children’s Lawyer, in turn, makes it clear – and the mother accepts – that those orders are sought based on the affidavit material which details the behaviour and issues already referred to;  in particular, those orders embrace recommendations made by Mr F but, just as importantly, matters directly relevant to the child’s best interests outlined in his report.

17. Despite the truncated nature of these proceedings, it is axiomatic that the Family Law Act 1975 (Cth) (“the Act”) requires the Court to take into account all of the relevant Statutory Considerations together with the Objects and Principles outlined in Part VII of the Act, and I make it clear that I am aware of my obligations in that regard. 

18. The relevant Considerations are, I think, self-evident from the issues which I have outlined briefly in these short reasons; principal among them, of course, is the protection of the child from harm, a Primary Consideration under the Act.

19. It ought not, however, be thought that that is the only Consideration taken into account by the Court.

20. A perusal of Mr F’s extensive Family Report and the report of Mr C reveals a number of other Considerations which I take into account in respect of the orders made, not least the capacity of each of the parties to parent appropriately and to meet the child’s intellectual and emotional needs. 

21. Although the child is not quite eight, I am satisfied that, when regard is had to the report of Mr F and the report of Mr C, his views are adamant and appropriately held, and ought be taken into account in that sense.

22. The mother seeks two orders additional to those outlined by the Independent Children’s Lawyer.  The Independent Children’s Lawyer indicates her agreement to those orders. 

23. The first, contained at paragraph 5 of the Case Information document, and which leave to file was given to the mother by me this morning, is effectively a continuation of the order made by Cassidy FM, to which I have earlier referred. 

24. That order, in the nature of an injunction, prevents the father from approaching the child in circumstances where, at least in the first instance, the mother may not be aware of it.  I consider, in light of all of the material before me, that the order is appropriate in the child’s best interests and should be made.

25. The second order, contained at paragraph 7 of that same document, and again, supported by the Independent Children’s Lawyer, is an order requesting the Australian Federal Police to place the child’s name on the “Airport Watch List”.  That order arises from the fact that the father has business interests in Asia, that the material reveals that it is likely that he will be based in Asia pursuing those business interests, that he is effectively a resident overseas for significant periods of time, and in any event, a frequent traveller between Australia and Asia, and that a number of the countries in which he does business and/or visits are non-convention countries.  It seems to me, in the circumstances of this case, that such an order is also appropriate in the child’s best interests.

26. To the extent that it is not already clear, it is, in my view, plain that the father has had notice of all orders sought against him.  The case information document in respect of which leave to file was given to the mother today, seeks the same orders contained in the earlier pleadings filed by her, which was served upon the father nearly two months ago. 

27. In all of those circumstances, it seems to me appropriate to make orders in the terms to which I have earlier referred, for the reasons that I have briefly outlined, and I so order.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 12 November 2012.

Associate:

Date:  19 November 2012