Harrell and Hancock-Harrell (No 3)

[2015] FamCA 1173

FAMILY COURT OF AUSTRALIA

HARRELL & HANCOCK-HARRELL (NO. 3) [2015] FamCA 1173

FAMILY LAW – CHILDREN – Best Interests – Where interim parenting orders were made providing that the child live with the mother and spend supervised time with the father – Where the father brings an application to have those orders discharged – Where the father seeks orders that the child live with him and spend supervised time with the mother – Whether the current orders are in the child’s best interests – Application dismissed.

FAMILY LAW – COSTS – Circumstances do not justify an order being made.

Family Law Act 1975 (Cth)

APPLICANT: Mr Harrell

RESPONDENT: Ms Hancock-Harrell

INDEPENDENT CHILDREN’S LAWYER: Judy Stewart

FILE NUMBER: BRC 1164 of 2014

DATE DELIVERED: 14 December 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 14 December 2015

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Ms Galbraith

SOLICITOR FOR THE RESPONDENT: Schultz Toomey O’Brien

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Boehm

Stewart Family Law

Orders

1. The Amended Application in a Case filed 7 December 2015 is dismissed.

2. The Respondent’s oral application for costs is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harrell & Hancock-Harrell 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 1164 of 2014

Mr Harrell

Applicant

And

Ms Hancock-Harrell

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 29 May this year I made interim parenting orders in this matter. They provided for the four year old child of the mother and the father in the proceedings to live with the mother, who was given sole parental responsibility for the child. The orders also provided for the child to spend two hours of time with his father each alternate weekend, supervised at D Children’s Contact Centre at Town E.

2. I also made orders restraining each parent from communicating with the other and restraining the father from communicating with the mother’s legal representative or the Independent Children’s Lawyer except for the purposes of communicating in respect of the conduct of these proceedings.

3. I delivered written reasons for judgment. My decision to limit the child’s time with his father to supervised time was primarily based on the expert opinion evidence of psychiatrist, Dr F, and psychologist, Ms G, but also my concerns about the father’s singular determination to focus on allegations that last year the mother’s parents had illegally possessed and stored weapons in their home, the place where the mother was living with the child and that this proved that the mother could not be trusted at all with the child’s safety. I was also concerned about the lack of any evidence that the father was receiving any ongoing treatment from a psychiatrist or a psychologist and with the father’s behaviour in court during the hearing and the unhealthy lack of insight that I considered his behaviour displayed.

4. Since those parenting orders were made, the father has spent more time in prison for breach of family violence protection orders made in the Queensland State courts. He has, regrettably, not spent any time with the child pursuant to the May 29 orders that I made.

5. Today, I am asked by the father to discharge that parenting order and to make an order that the child live with him and spend supervised time with the mother. In support of this application, the father effectively advances the same case that he advanced on 29 May this year. In short, he maintains his singular focus on the issue of the possession and storage of illegal firearms in the home of the mother’s parents last year. He refers to a document that he adduces into evidence that he now submits proves that the mother and her parents did not tell the truth about all of the matters associated with firearms and their possession of them last year.

6. I am, however, satisfied on the evidence, just as I was in May this year, that the firearms issue has been dealt with to the satisfaction of the Queensland Police Service and the Queensland Department of Communities, Child Safety and Disability Services. I am satisfied that the mother’s parents have removed the firearms from their premises and that they did that last year. Furthermore, the mother’s evidence is now that she has moved with the child to a new residence since May this year and is no longer living with her parents.

7. I am quite satisfied that the current parenting orders meet the child’s best interests and that the father has regrettably failed to demonstrate any requirement for a change on this day.

8. In his Application in a Case that I am determining today, the father also seeks orders that:

   (i)The child not reside at, or visit, the address of his maternal grandparents;

   (ii)The child have no contact with six members of his extended maternal family and their spouses or four other named persons;

   (iii)That the mother provide all up to date information and photos of the child to the father; and

   (iv)That the mother re-instate, at her cost and effort, all things stolen from the father’s home in January 2014 which belong to the child and the father.

9. I am not satisfied that the child should not visit his maternal grandparents’ home. I will not restrain his mother from taking him there to visit them when she so chooses.

10. I am not satisfied at all that the child’s best interests demand that he not come into contact with the other persons the father has named. Indeed, the father has not adduced evidence going to this matter at all, save for the general evidence he has adduced about the firearms issue that relates to the maternal grandparents last year. I will not make the order he seeks restraining the mother from taking the child to spend any time with any of those named persons.

11. I will not make an order that the mother reinstate all things stolen from the father’s home in January 2014. The father has not satisfied me at all with any cogent evidence that the mother in fact “stole” things from his home in January 2014.

12. As to the notion of “up to date information and photos of the child” being ordered to be provided by the mother to the father, again the father has not adduced any evidence that goes to that issue at all. The fact that he has not seen the child since May this year is, in my judgment, his responsibility and his alone. He could remedy that by himself taking up the opportunity provided by the May Order to spend time with his son at a contact centre.  For his son’s sake I sincerely hope that he does. I will not make the order that he seeks in the form of an order that the mother provide him with up to date information and photos of the child, but I conclude my reasons for judgment today by simply observing that it would be a nice thing for the mother to do, to send some recent photographs of their child to the father.  His address for service is clearly provided on his court documents.  That could readily be done.

Costs

1. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) sets out the general proposition that in proceedings under the Act a party bears their own costs. That, of course, is subject to a discretion that is given to the court in sub-section 117(2) of the Act to make costs orders that it considers just if the court is satisfied that the circumstances justify doing so.

2. In satisfying itself that the circumstances justify doing so and determining, if so satisfied, what costs orders if any should be made as being just, the court is required to consider all of the matters that are enumerated in s 117(2)(A) of the Act. One of those matters is the financial circumstances of the parties. In this particular case, I have heard from the father that he is in receipt of no other income other than Centrelink benefits and has no assets other than a record collection and something else that sounded as if it is of no more than sentimental value to him, or not much more than sentimental value to him.

3. I am not satisfied that it would be just to make an order against him, ordering him to pay the costs of the mother in the circumstances.  I also bear in mind that the mother is in receipt of Legal Aid and has not actually had to pay any of her own funds towards her legal representation today.  I appreciate that when a party is legally aided, that does not disentitle them from making an application for costs, but in the circumstances, I do not consider that a costs order for the father to pay the mother’s costs would indeed be just and I will not make one. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 14 December 2015.

Associate: 

Date:  21 December 2015