Harris and Jackson

[2012] FamCA 626

FAMILY COURT OF AUSTRALIA

HARRIS & JACKSON [2012] FamCA 626

FAMILY LAW – CHILDREN – Parenting – Spend time with – Communicate with – Where the Mother did not appear and failed to put any information before the court – Where the Mother has multiple children to different fathers – Father to have sole parental responsibility for the child – Mother to spend time and communicate with the child as may be agreed between the parties – Step-brother to be restrained from coming into contact with the child.

APPLICANT:

Ms Harris

RESPONDENT: Mr Jackson

INDEPENDENT CHILDREN’S LAWYER: Mary Buchanan Solicitor

FILE NUMBER: NCC 1257 of 2007

DATE DELIVERED: 26 July 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 26 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: There being no appearance by the Applicant Mother

COUNSEL FOR THE RESPONDENT: The Respondent Father appearing in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Linklater-Steele of Counsel appearing for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid Queensland

Orders

IT IS ORDERED THAT:

1. All previous Orders be discharged.

1. The child, E born … July 2003 (“the child”), live with the Father.

1. The Father have sole parental responsibility for the child.

1. The Mother spend time and communicate, including telephone communication, with the child at all such reasonable times as may be agreed between the parties and failing such agreement as may be determined by this Honourable Court.

1. Mr T be restrained and an injunction is hereby granted, restraining him from coming into contact, being in the same house or being within 50 metres of the child.

1. The Independent Children’s Lawyer be discharged.

1. 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harris and Jackson 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: NCC 1257 of 2007

Ms Harris

Applicant

And

Mr Jackson

Respondent

REASONS FOR JUDGMENT

1. This is an application which has had a long chequered history before this Court.  It was initially instituted by the mother in her application of 21 June 2011.  I must say that there have been many appearances in this Court prior to that but the matter I am dealing with is the application of the mother.

2. As has fallen from Linklater-Steele, instructed by the independent children's lawyer, virtually who has appeared out of courtesy, and as it appears pro bono, and I compliment her on so doing, there have been at least five family reports.  Mr C, I know has been involved at least three of the times.  There has been a final one which was done by a Ms A comparatively recently.

3. There have been at least two contested matters, whether they were on an interim basis or otherwise before this one.   Murphy J gave an in depth judgment as far back as 2009, if my memory serves me correctly, and I gave one towards the end of last year.

4. It is an absolute tragedy that, as has been pointed out by Ms A, this family have an unfortunate dysfunctional relationship.  I have commented and I incorporate in these, my fresh reasons for judgment, my description of the family of the mother in which I think she is the mother of five or six children, all of different fathers.  G, a boy who would be about 18 now, has a very chequered career and I make it quite clear, as has been submitted by Linklater-Steele for the independent children's lawyer, that he should have nothing to do with the child and I will be making a permanent injunction against his coming into contact with the child at all.

5. It is a tragedy, in this case, that of the many children of the mother, one in particular, I feel, is being hurt by this dispute and that is L.  Her father, Mr B is here at present.  He lives in Newcastle.  Unfortunately he does have some contact with G but nevertheless, L is very close to the child and L, I think, is showing some signs of emotional strain.  I think Ms A is quite sure that that is the case, L is flat whereas the child is not.  However, she is not before the Court by way of any application and I could not make an order in relation to contact by L with the child, however, I have recommended, and I understand it has taken place, that the child see L as often as possible so long as, of course, the child is safe and that is one of the reasons why I am making the permanent injunction order against Mr T.

6. Insofar as the applicant, she has not put any material before the Court, notwithstanding she was ordered, on one occasion, other than the initiating application, she was ordered on one occasion to comply with further material by a certain date.  She failed to do so.  It has been extended by order of the Registrar to 16 May 2012, she has not complied with that.

7. The material on the part of the respondent father consists of a very, with great respect, useless affidavit for the Court to determine this very difficult matter and also an affidavit from his present partner.  I note, fortunately, that Ms F gets on well with the child and the child quite likes her, as I understand.

8. The child is going well.  She moved into her father’s possession, in effect, permanently by order of myself and there has been some contact between the mother and the child, mainly by phone but she has had contact with her for a period of two days at Easter.

RECORDED   :   NOT TRANSCRIBED

1. It is unfortunate we do not know anything about the mother and consequently in one way it makes it much harder for me to give a judgment, another way it makes it much easier.

2. There is no contest, on the evidence that I have seen before me, that the child remains with the father and I would order that she live with him and he have sole parental responsibility.

3. Mindful as I am of the strictures placed upon this Court by the politicians in relation to section 60CC, as amended, fortunately we do not have to look at that in this case at this stage, otherwise we might have mother-in-laws being affected.

4. I consider that those matters, in particular the matters which I have to consider, have been more than adequately looked at by Ms A, whose evidence I have to accept unreservedly, and I believe that the two compulsory matters are adequately explained by herself in her full and in depth report.

5. In the matter of Rosa & Rosa [2009] FamCAFC 81, I have to be satisfied, first of all, that any access or contact, as I order, should be substantial and satisfactory. In this case I am not ordering any other than if there be contact between the child and the mother, as may be agreed between the parties. Unfortunately, that is as far as I can go in this case because I am not satisfied that the mother has put any proposals before me with any substance whatsoever and insofar as any contact is reasonably practicable because I am not ordering other than telephonic and communication between the parties, I am sure it is more than reasonably practicable.

ORDER DELIVERED

1. I discharge the independent children's lawyer.  I must say, in passing, that I am informed from the bar table, and it is supported by the affidavit of the independent children's lawyer in seeking leave to withdraw, that the amount expended on this case is something like $58,000.  It is an enormous amount of money; the party has not even appeared and it is no wonder that the Legal Aid Commission refused to fund the independent children's lawyer again.  The independent children's lawyer has done all she possibly can and as I have already said, I compliment her upon, in effect, staying in for the assistance of the child.  No one else but for the assistance of the child.  Order accordingly.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 26 July 2012.

Associate: 

Date:  26 July 2012