Healy and Twine (No.2)

[2017] FCCA 324

FEDERAL CIRCUIT COURT OF AUSTRALIA

HEALY & TWINE (No.2) [2017] FCCA 324

Catchwords:
FAMILY LAW – Parenting – mother breached orders requiring her to produce children to attend for family report interview – mother homeschooling children – concerns with respect to children emotional and intellectual welfare in mother’s care – mother did not attend at court – Department of Health and Human Services asked to intervene – Department of Health and Human Services indicated will carry out intervention.

Legislation:

Family Law Act 1975, s.91B

Applicant: MR HEALY

Respondent: MS TWINE

File Number: MLC 3592 of 2013

Judgment of: Judge Harland

Hearing date: 23 February 2017

Date of Last Submission: 23 February 2017

Delivered at: Melbourne

Delivered on: 23 February 2017

REPRESENTATION

Counsel for the Applicant:	Mr. O'Connell
Solicitors for the Applicant:	G A Black & Co
The Respondent	No appearance
Counsel for the Independent Children’s Lawyer:	Ms Trapski
Solicitors for the Independent Children's Lawyer:	Trapski Family Law

REQUESTS

1. That pursuant to section 91B of the Family Law Act 1975, the Department of Human Services Victoria (“the Department”) intervene in these proceedings.

ORDERS:

1. That the proceeding is adjourned for Mention Hearing on 13 April 2017 at 9:30am.

2. That my chambers provide to the Department copies of all relevant documents filed in the proceedings, including the Child Inclusive Conference Memorandum dated 28 July 2015 and the two Family Reports dated 13 July 2016 and 19 January 2017, to enable the Department to consider the request to intervene in the proceedings.

3. Independent Children’s Lawyer granted liberty to apply, in the event the Department completes its investigation, for the matter to be heard on short notice.

IT IS NOTED that publication of this judgment under the pseudonym Healy & Twine (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3592 of 2013

MR HEALY

Applicant

And

MS TWINE

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This matter was listed before me this morning for what was supposed to be directions after the release of the updated family report.  For the background of this matter, I refer to my decision handed down on 6 October 2016 which sets out the history of this matter.[1]  The case concerns two children, X born (omitted) 2004 aged 12 and Y born (omitted) 2007 aged 10.  Last year I presided over a hearing with respect to the issue of family violence. The mother was self-represented and has been self-represented in these proceedings for some time. 

   [1] Healy & Twine [2016] FCCA 2565.

3. This matter has a history going back some three years and is characterised by the mother’s repeated failure to comply with the Courts orders.  It is very apparent from the mother’s presentation in Court and her own documents that she has utter disregard for the Court process and disregard for authorities in general, including schools.  I made it very clear in my reasons that the Court had concerns for the welfare of the children and that determining the issue and extent of family violence did not mean that there was an end to the Court’s involvement or concern about the children. 

4. This Court has an obligation to consider the children’s best interests as paramount.  The Court has been unable to carry out that assessment because of the mother’s frustration of the Court processes.  Her attitude only increases the Court’s concerns about the welfare of these children, and this is something that was flagged in the reasons for decision. 

5. The mother home schools the children.  It is quite clear that the children and the mother are isolated.  There are real concerns about the children’s educational needs and concerns about the mother’s capacity to provide for the children’s emotional and intellectual needs. 

6. The mother was on notice of these being concerns of the Court and the importance of her producing the children to the family report writer to enable the family report to be completed.  The Court went to the trouble of obtaining a particular date to include in the order so that the mother was under no misapprehension as to what was required of her.  The mother gave assurances to the Court that she would comply with that order.  She then did not and it is quite clear as reported by the report writer, she misrepresented to the report writer what the Court had said in that regard. 

7. The Independent Children's Lawyer has tendered a letter from the mother which I have marked as exhibit A, where the mother indicates that she is well aware that the matter is in Court today.  She simply makes demands, it seems, of the Court, as well as others, that she have sole custody of the children and she wants compensation for neglect of duty and defamation of character from the Courts and whoever else is concerned. She says it could be kept out of Court or not. 

8. Court orders are not optional.  They are not guidelines.  They are not suggestions.  Section 112AP(b) of the Family Law Act 1975 (Cth) deals with contempt and defines “contempt” as constituting “a contravention of an order under this Act and involves a flagrant challenge to the authority of the Court”.  Certainly the mother’s conduct seems to fall within that category.  The Court and indeed the Independent Children's Lawyer and the father have been placed in somewhat of a quandary in terms of how to progress the matter. 

9. The father seeks a recovery order of the children.  The father has complied with the Court processes.  The father has been attempting to re-establish his relationship with the children for some three years, including through supervised contact at a contact centre, where initially the mother had agreed to those orders but refused to comply with them.  The father has done all he can to re-establish his relationship with the children and if the father was not genuinely concerned for the children’s welfare, he would not still be attending Court some three years later and putting himself through what is a distressing and stressful process. 

10. The reason that these proceedings have been drawn out in the way they have is because of the mother’s continuing failure to comply with Court orders and properly engage in the process.  It seems quite apparent that unless things are done on her terms, she will not have any regard for the process and sees it as an intrusion.  One option is to issue a warrant for the mother’s arrest.  That would certainly have the effect of bringing the mother to Court, but of course it leaves the children potentially in nobody’s care because the Court simply does not have information about there being anyone else involved. 

11. The concern of the Court is to get information about the welfare of the children.  Due to the concerns, the Court has requested the court liaison officer from the Department of Health and Human Services (“the Department”) to attend today and Ms S has done that.  I indicated that I will be requesting the Department to intervene in these proceedings and to carry out an investigation because in my view that is the only way that the Court is going to be able to get information about the welfare of these children and Ms S has indicated that given the circumstances, the Department will carry out that investigation which will involve both parents and the children and that investigation should take about 28 days. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 24 February 2017