Hollier and Spaulding

[2018] FamCA 35

FAMILY COURT OF AUSTRALIA

HOLLIER & SPAULDING [2018] FamCA 35

FAMILY LAW – CHILDREN – Best Interests – Where proceedings were part heard – Where there were concerns regarding the mother’s parenting capacity – Where interim orders were made for the mother to have no contact with the children – Where the mother has withdrawn from the proceedings – Where concerns as to the mother’s parenting capacity remain the same – Orders made with the consent of the father and the Independent Children’s Lawyer. 

Hollier & Spaulding [2017] FamCA 1130

APPLICANT: Mr Hollier

RESPONDENT: Ms Spaulding

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Bankstown Family Law

FILE NUMBER: SYC 1616 of 2011

DATE DELIVERED: 15 January 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 15 January 2018

REPRESENTATION

THE SELF REPRESENTED APPLICANT: Mr Hollier

COUNSEL FOR THE RESPONDENT: Mr Jauncey

SOLICITOR FOR THE RESPONDENT: Jack Rigg Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Schroder

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Bankstown Family Law

Orders

I make orders in terms of 1 to 5, (a) and (b), and 6 to 8 of exhibit 13, and in lieu of order 5(c) in exhibit 13, I make the following order as order 5(c):

1. Entering or remaining upon any school or place of work of the children, or any of them, or any other premises or place at which the children, or any of them, may be attending from time to time.

I also add as order 5(d): 

1. Attempting to obtain information about the children from any agency which holds such information, including any school or health professional engaged with the children, except information that may be given by the father, in his sole discretion, to the mother.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Hollier & Spaulding has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 1616 of 2011

Mr Hollier

Applicant

And

Ms Spaulding

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Today, a parenting dispute with respect to three children was listed to resume and be completed over the next three days.  The proceedings were adjourned part-heard in December 2017 following a five-day hearing. 

2. At the time the proceedings adjourned, I took the unusual step of making interim orders with respect to the mother’s time with the children, pending further order, and in particular suspended that time and any contact between the mother and the children.  At the time of making that order, I delivered a judgment[1] which contained details of the disturbing matters with respect to the mother’s behaviour that had arisen in the proceedings in December.

   [1]Hollier & Spaulding[2017] FamCA 1130

3. The reasons for those interim orders are to be incorporated in these reasons for final orders.

4. Today, when the matter was listed to continue before me, counsel for the independent children's lawyer informed the mother’s legal representatives, shortly prior to the resumption of the hearing, that the independent children's lawyer proposed calling Mr E, who in my view played an important role in these proceedings.  In particular, it was the mother’s case, and had been accepted by the expert in the proceedings, that Mr E was a person who had exercised significant control over the mother at the time that she had written child-abuse material which is central to this parenting dispute, and that there was a significant power imbalance between Mr E and the mother.  It was the mother’s case that all of her actions in writing the child-abuse material had been at the behest of Mr E, and that she was in effect acting under his control.

5. Immediately when the proceedings commenced before me today, the mother’s counsel sought a short adjournment, which was given.  Upon resumption of the proceedings, the mother both withdrew her application for orders with respect to the children and withdrew from the proceedings altogether.  In answer to a specific question from me to the mother’s counsel, she did not wish to participate in the proceedings any further, and she and her legal representatives then left the courtroom. 

6. In the absence of the mother, and her having discontinued the proceedings, the father and the independent children's lawyer were able to reach agreement with respect to final orders.  Those orders are essentially a continuation of the interim orders that were made when the proceedings adjourned, with some small inconsequential changes.

7. I am mindful that the final orders that I have made are the most extreme orders able to be made by this Court, in that I have allocated sole parental responsibility for the children to one parent at the exclusion of the other and have provided that one parent, being the mother, shall not spend any time or communicate with the children by any means, and that she be subject to various restraints, including approaching various places related to the children, such as schools or residence, attempting to communicate with the children, and attempting to obtain information concerning the children.

8. The reasons that I have made such orders are the same as the reasons for making such orders on an interim basis.  While it may have been expected that the mother may have addressed some of the matters of concern in her case, she has chosen to discontinue from the proceedings completely.  In these circumstances, where significant concerns, as previously explained, have been raised on the evidence, she can be taken to accept that there is no benefit to the children in having a meaningful relationship with her.  In circumstances where she now makes no proposals for orders that also may have addressed the serious concerns about the risks posed by her, she can also be taken to have accepted that she does pose an unacceptable risk of harm to the children and that currently there is no way, through any orders, to mitigate that risk of harm.

9. In these circumstances, where the mother is no longer participating in the proceedings and where no unacceptable risks of harm in relation to the father were raised in cross-examination of him and where he has exercised sole parental responsibility for the children for two years, I am satisfied that the orders proposed by him and agreed to by the independent children's lawyer are in the best interests of the children.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 15 January 2018.

Legal Associate: 

Date:  30 January 2018