Hilliard and Carden

[2012] FamCA 252

FAMILY COURT OF AUSTRALIA

HILLIARD & CARDEN [2012] FamCA 252

FAMILY LAW – CHILDREN – Interim time pending father’s release from prison

Family Law Act 1975 (Cth)

APPLICANT: Ms Carden

RESPONDENT: Mr Hilliard

INDEPENDENT CHILDREN’S LAWYER: Mr Purcell

FILE NUMBER: TVC 971 of 2007

DATE DELIVERED: 21 March 2012

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Murphy J

HEARING DATE: 21 March 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Kitchener of Stevenson & McNamara Lawyers

THE RESPONDENT: In person by videolink

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Fellows

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Purcell Taylor Lawyers

Orders

IT IS ORDERED THAT

1. The interim parenting Orders made by Federal Magistrate Coker on 28 July 2009 be discharged.

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The children L, born … May 2005, and D, born … March 2007 (“the children”), live with the mother.

2. The mother have sole parental responsibility for the children’s long-term care, welfare and development.

3. Each parent shall have the sole responsibility for the children’s day-to-day care, welfare and development during such times as the children are in such parent’s care.

4. The father shall spend time with the children as agreed between the parties, but in particular:

   a.   Whilst he is incarcerated at the prison once a fortnight at the prison for one visiting period on Saturday.

   b.   On release from the prison, each alternate Saturday between the hours of 9.00am and 3.00pm, if the father is residing in Town R for a period of three months.

   c.   At the end of that three month period, and providing the father has suitable accommodation in Town R, for the children, each alternate weekend from 9.00am Saturday to 3.00pm Sunday.

   d.   If the father does not have suitable accommodation where the children can spend time with him, then the Father is to spend time with the children each alternate weekend in Town R from 9.00am to 3.00pm on both Saturday and Sunday.

   e.   On the children’s birthdays from 10.00am to 4.00pm on a non-school day, and from 3.00pm to 6.00pm on a school day, if the children are not otherwise spending time with the father on their birthdays.

   f.   From 12.00pm on Christmas Day to 12.00pm Boxing Day every even numbered year, if the father has suitable accommodation in Town R.

   g.   From 12.00pm on Christmas Eve to 12.00pm on Christmas Day every odd numbered year, if the father has suitable accommodation in Town R.

   h.   If the father does not have suitable accommodation, then the Father is to spend time with the children on Christmas Day between 11.00am and 3.00pm.

   i.    On the father’s birthday, from 10.00am to 4.00pm on a non-school day, or from 3.00pm to 6.00pm on a school day, if the children are not otherwise spending time with the Father.

   j.    On Father’s Day from 10.00am to 4.00pm if the children are not otherwise spending time with the Father.

5. The father is to have telephone contact with the children as agreed between the parties whilst he is not serving a period of imprisonment or remanded in custody and in the absence of any such agreement, each Monday, Wednesday and Friday between 4.30pm and 6.00pm.

6. The children will spend time with the mother on the children’s birthdays from 10.00am to 4.00pm on a non-school day, and from 3.00pm to 6.00pm on a school day, if the children are not spending time with the mother on their birthdays.

7. The children will spend time with the mother on the mother’s birthday from 10.00am to 4.00pm on a non-school day, and from 3.00pm to 6.00pm on a school day, if the children are not spending time with the mother on her birthday.

8. The children will spend time with the mother on Mother’s Day from 10.00am to 4.00pm if the children are not otherwise spending time with the mother on Mother’s Day.

9. For the purpose of these Orders all changeovers are to take place at Location 1 in Town R.

10. The parents are to notify each other of any change in address, or telephone contact number within twenty-four (24) hours of any such change.

11. Neither parent shall consume alcohol to excess, or use illicit drugs in the presence of the children, or allow any other person to consume alcohol to excess, or to use illicit drugs in the presence of the children.

12. Neither parent shall denigrate the other in the presence of the children or allow any other person to denigrate either parent in the presence of the children.

IT IS FURTHER ORDERED THAT

1. The father shall file and serve upon the wife and the Independent Children’s Lawyer, within three (3) months of his being released from prison, any Application for parenting Orders, together with an affidavit setting out all the issues he considers relevant to the question of the children’s best interests.

2. If the father files and serves an Application and supporting affidavit in accordance with paragraph 14 of these Orders, the matter is to be listed to a Registrar as soon as practicable thereafter for the making of all such directions as are necessary so as to facilitate a trial. 

3. In the event that the father does not file both an Application for parenting orders and an affidavit in accordance with these Orders, the interim parenting Orders made today will take effect as final orders as and from the date three months after the father is released from prison.

4. The father shall notify the Independent Children’s Lawyer and the solicitors for the mother, in writing of:

   a.Any notification received by him relating to the date of his release from prison; and

   b.His release from prison, within forty-eight (48) hours of its occurrence.

5. 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 Hilliard & Carden has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVC 971 of 2007

Ms Carden

Applicant

And

Mr Hilliard

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter has been languishing in one court or another for a considerable period of time. It appears that it started life as a result of an application made in the Federal Magistrates Court in May 2009. Subsequently, on 22 July 2009, a further initiating application was filed. No reference is made in that initiating application to it being an amended initiating application but it seems that is what it was.

2. That application sought, in very broad terms, that the children, L born in May 2005 and D born in March 2007, live with the applicant mother, that she have sole responsibility for them and that the father spend time with the children as might be ordered.

3. In August 2009 the self-represented father filed a response. In that response he wrote, by way of orders sought, “do not agree with the mother having sole parental responsibility as there are investigations in child safety services and … police into child abuse by [the mother]”. Secondly, it is said “child safety services are reviewing the case of the children living with mother at present moment…”. Otherwise, it seems, that the response sought that the father did not agree with the orders sought by the mother.

4. It is not necessary to trace the procedural history subsequent to that time. Suffice to say that on 28 July 2009, Coker FM made interim orders by consent. The effects of those orders were that the children would live with the mother, the parents would have equal shared parental responsibility and time was specified for the father to spend with the children on weekends from 9.00 am on Saturday until 9.00 am on Sunday.

5. In June 2011, the father was incarcerated. He remains incarcerated. He recounts today (when he appeared for himself by video from the jail) a long history of what, he says, are injustices that will inevitably result in an appeal by him to the Queensland Court of Appeal being successful.

6. As best as I can understand what he says, he suggests that because, while provisions of the domestic violence legislation in Queensland provide for a maximum of two years imprisonment, he has been twice punished for the same breach and had imposed cumulative sentences that exceed the maximum sentence provided for under that legislation or a combination of both, the sentences are what he describes as “illegal” leading, he says, to inevitable success in an appeal.

7. Unfortunately, the father is unable to tell me when any such appeal is likely to be heard or, indeed, to give specifics of the requisite steps undertaken by him so as to ensure that that appeal will, in fact, be heard and determined by the Queensland Court of Appeal.

8. The father is unable to tell the Court when, in the event of lack of success of that appeal, he will be released from prison or, in the event that the appeal is heard and succeeds wholly, when he will be immediately released as a result. It is also not possible to discern from the material before me when a likely future release date will occur, in the usual course of events.

9. The evidence before me suggests that the father has been convicted of serious assault of a police officer a few days ago and will be sentenced in May, subsequent to the receipt of a psychiatric report. Other evidence suggests that the father awaits further charges in respect of which, I gather, he has not yet been convicted.

10. It is said that the sentence in respect of the matter of which he has been convicted (and any convictions of the matters which await hearing) are likely to result in lengthy periods of imprisonment, given the lengthy criminal history of the father. It is, perhaps, sufficient to mention in that respect that the father was sentenced – I gather on a plea of guilty on a charge of rape - to eight years jail in 1996.

11. I gather that the father says that the sentence, with respect to serious assault of a police officer (and perhaps the other offences with which he stands charged), might also be the subject of matters that he asserts might involve some sort of illegality or serious breach of process that would result in his immediate release, much in the manner he asserts with respect to the current sentences, to which I have earlier referred.

12. The simple situation therefore confronted by the Court is this:  these proceedings have, as I have said, been languishing for some considerable period of time. Understandably, the mother seeks certainty.

13. In that respect, during the timeframe to which I have just referred, the father has filed an application in a case on 28 October 2010 (some months, it might be noted, prior to his incarceration). In that application he seeks:

    (1)      A “stay” of current orders made by Coker FM on 28 July 2009,

    (2)Due to the “best interests” of my children who are in an harmful environment. I, as their father, would like the Magellan Court Judge to reconsider his position on current orders due to further evidence submitted in Family Law Court rules affidavit

    (3)I would like the children placed in my custody as of today to bring them to a safe environment until the sitting of the final orders application on 17 October 2010.

14. It seems that this application and response have never been dealt with on its merits. The reasons for that remain obscure but may be associated with, at least in part, incarceration of the father in June of the following year.

15. There things have, essentially, remained until I required this matter to be brought on at a call over of matters conducted by me on 7 February this year. As a consequence of that listing, the mother filed, as directed, an outline of case document. In that document, she seeks “final orders” in terms which I will discuss in a moment.

16. Those orders are sought, despite no further amended initiating application seeking final orders being filed, and despite the fact, I have said, that the application in the case and response to that application has never been dealt with on its merits.

17. It is plain that, despite his incarceration, the father has received a copy of that document and has considered the orders sought within it. So much was plain from the outset of the proceedings before me this morning, when the father indicated that his core objection to the orders sought was that no orders be made on a final basis.

18. His reasons for that are connected with the matters earlier outlined by me, principally, what he says is the inevitability of his instant release, consequent upon the inevitable success of the appeal relating to what he describes as “the illegal sentences” earlier described.

19. In light of the procedural history that I have just described and the fact that the father in these proceedings raises allegations against the mother (whether they be ultimately substantiated or not), and due to the fact that the father is incarcerated it does not seem to me to be in the interests of justice or, indeed, the best interests of the children that final orders be made in these circumstances.

20. I arrive at that conclusion, cognizant of the fact that the mother, understandably enough, seeks finality in respect of parenting orders with respect to the children. Whilst understandable, that does not, in my view, outweigh the considerations to which I have just made reference.

21. It seems to me that the interests of justice and the best interests of these children require there to be, what I will call, the “normalisation” of the proceedings and certainty being given to the children and the parents about what is to occur both now and in the future.

22. In arriving at that conclusion, I am also, of course, cogniscent of the provisions of section 69ZN of the Act and the mandatory principles which govern the conduct of child-related proceedings in this Court. Expressed broadly, an important mandatory principle for the conduct of those proceedings is that:

    As many issues as possible be dealt with on the one occasion and matters be brought to a conclusion as soon as possible, with as little legal technicality and form, as is reasonably possible consistent with the interests of justice.

23. Taking all of those matters into account and, not least, the practical reality that the father remains incarcerated against the background of a significant past criminal history and complete uncertainty about his current position with respect to release from jail, it seems to me that orders ought be made that discharge the orders made by Coker FM.

24. But, in lieu of final orders being made, as sought by the mother, orders should be made until further order in terms of the orders sought in the outline of case document filed by her on 19 March 2012. Those orders provide for the children to live with her and for her to have sole parental responsibility for them in respect of their long term care, welfare and development and for the father to spend some time with the children, both whilst he remains incarcerated and after his release.

25. In respect of the former, the mother seeks an order that the children visit him for one visiting period on Saturday each fortnight. The father contends that should be weekly. There are, plainly enough, significant considerations relating to young children (L is not yet seven and D has just turned five) visiting a parent in jail. There are the practical considerations of arranging visits and, of course, the difficulty of the environment in which the time was spent. It seems to me in the best interests of these young children that time at the correctional facility should be fortnightly, rather than weekly as the father contends.

26. Otherwise it seems to me that the orders which provide for time, consequent upon the father’s release, are, on the evidence before me, appropriate to be made on an interim basis as being in the children’s best interests.

27. I am not prepared to permit this matter to go on without there being some certainty about its ultimate determination. I have canvassed that issue with the father and have made it clear to him that he will be given a period of time which I consider to be, appropriately, three months in which to file any application for parenting orders considered by him to be appropriate. I will also order that that application be accompanied by an affidavit in which he sets out all matters directly relevant to the issues that he says need to be addressed by the Court in making orders which are in the best interest of these children.

28. Upon the father filing and serving each of the documents, the matter will be listed for a registrar for the making of all such directions as might be necessary, so as to facilitate the earliest possible trial of the issues raised by that application.

29. Those directions by the registrar will include the filing of material by the mother and may include, depending upon the registrar’s discretion, the registrar granting leave for both the mother and the independent children’s lawyer to rely upon material earlier filed by them for the purposes of the trial.

30. In the event that the father does not, within a period of three months from the date of his release from jail, file such application and affidavit, then the orders made by me today on an interim basis shall become final.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 21 March 2012.

Associate: 

Date:  13 April 2012