Holley and Harper

[2009] FamCA 828

FAMILY COURT OF AUSTRALIA

HOLLEY & HARPER [2009] FamCA 828

FAMILY LAW – CHILDREN – best interests of the child - allegations of child abuse – with whom a child lives – with whom a child spends time

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT:   Ms Holley

RESPONDENT:   Mr Harper

INDEPENDENT CHILDREN’S LAWYER: Mr Carter

FILE NUMBER: BRC 803 of 2009

DATE DELIVERED:   25 August 2009

PLACE DELIVERED:   Brisbane

PLACE HEARD:   Brisbane

JUDGMENT OF:   Murphy J

HEARING DATE:   25 August 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:   Ms Black
Journey Family Lawyers

NO APPEARANCE BY THE RESPONDENT:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: 

Mr Carter

Carter Farquar Lawyers

Orders

IT IS ORDERED THAT

1. The Orders made by consent on 18 November 2004 are discharged.

2. The Independent Children's Lawyer is discharged.

IT IS FURTHER ORDERED THAT

1. Upon being satisfied that the presumption of equal shared parental responsibility is rebutted in this case by reason of the best interests of the children, the mother shall have sole parental responsibility with respect to the children D born … May 2000 and A born … March 2003 (“the children”).

2. The children of the relationship between the mother Ms Holley and the father Mr Harper live with the mother.

3. Upon the father notifying the mother of his desire to spend time with the children, he shall first:

   a.Complete a recognised Parenting Course; and

   b.Provide a Urine Drug Analysis Report to the mother indicating that he is free of illicit drugs.

4. Upon completion of the Parenting Course, and with provision of the clear Urine Drug Analysis Report refereed to in the previous paragraph of these orders, the father shall spend time with the children initially for one hour at a Contact Centre which is reasonably available to the mother and the children.

5. If the father indicates an intention thereafter to spend time with the children, he shall forward to the mother’s Solicitor, his written proposals for the time that he shall spend with the children.

6. Any time that the father spends with the children shall, unless otherwise agreed to by the mother in writing, or by other order of the court, be supervised.

7. The mother shall use her best endeavours to advise the father or the father’s mother, as the case may be, at … Street, N, of an address at which she can be contacted and/or written communications forwarded to the children.

AND IT IS FURTHER ORDERED THAT

1. 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 under the pseudonym Holley & Harper is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 803 of 2009

MS HOLLEY

Applicant Mother

And

MR HARPER

Respondent Father

EX TEMPORE

REASONS FOR JUDGMENT

1. This is a matter that first came before the court in this court’s Magellan list by reason of allegations by the mother, essentially contained in a notice of child abuse filed by her on 2 February 2009, alleging significant physical abuse of the children by the father. 

2. Broad specifics of those allegations involve the father hitting the children with a vacuum cleaner hose and a shoe.

3. Tendered by the independent children’s lawyer today, and marked in these proceedings as Exhibit 1, is a document from the Queensland Police outlining the father’s criminal history which might be described as reasonably significant, and which includes, for example, a period of imprisonment for approximately 53 days in October 2007 and a previous period of imprisonment for some six months in March of 2000. 

4. The most recent offences recorded in that document involve a conviction on 7 August 2008 at the Magistrates Court in respect of, it seems, offences which occurred, in the main, approximately 12 months previously in August 2007.

5. The father has not appeared at any stage in these proceedings. 

6. By reason of parenting proceedings commencing in this court, the mother and the children were referred to a family consultant attached to this court, Mr P.  Ultimately Mr P prepared a family report. 

7. For present purposes it is sufficient to note two things.  First, that interviews were conducted in March of this year with the mother and the children but the father did not participate in that process.  Secondly, Mr P recommends that interim orders proposed by the mother be considered by this court and that time with the children should essentially be supervised. 

8. Since that report was released on 25 March 2009, this matter has returned before me in the Magellan list on, I think, two occasions. 

9. On each of those occasions the father has not attended.

10. As a result of that non-attendance, I made orders for substituted service.  An affidavit of service filed on behalf of the mother on 28 July 2009 deposes to service of a number of documents, including the order made by me on 29 April 2009 upon the father’s mother at … Street, N, and deposes to the means by which identification was obtained. 

11. Specifically, the affidavit deposes to the woman served indicating that she was the father’s mother and that she would accept documents on his behalf.

12. In light of that event, I gave the father an additional opportunity to attend by not making orders in default of appearance in favour of the mother, and indicating to her that that matter would be heard today after the court had given the father another opportunity to appear. 

13. In any event, the father has not appeared today.

14. A report prepared by the Department of Child Safety on 29 April 2009 pursuant to section 69ZW of the Act has been formally marked in these proceedings as Exhibit 2.

15. That document sets out the concerns indicated to the Department about the father’s behaviour. 

16. In the circumstances contained in the material before the court, including the documents to which I have referred, and the matters raised by Mr P in his report, it is, in my view, prudent to order that in the event the time between the children and the father should later occur at his instigation, that any such time be supervised pending any written agreement by the mother to the contrary or further order by this court.

17. Although the provisions of rule 10.15A of the Family Law Rules 2004 pertain only to circumstances where the parties seek consent orders in circumstances where allegations of abuse are made, it seems to me appropriate in circumstances where orders in default of appearance are sought, to reflect in reasons the sorts of considerations contained in that Rule.

18. It will be obvious from the orders that I have made, that they seek to address the allegations of abuse raised by the mother, and explain that those allegations have been dealt with by, firstly, the provision for any future time being supervised; and secondly, the provision for the father to undertake a parenting program and to satisfy the mother that he is free of illicit drugs before any such time between the father and the children takes place.

19. I should record that it has been some 10 months or so since the father has seen the children, and the mother, through her solicitor this morning, informs me from the bar table (as to which see Division 12A of the Act) that the father has, in that time, evidenced no particular interest in seeing the children. 

20. For all of those reasons I make the orders I earlier indicated.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  4 September 2009