Joslyne & Carrel

[2023] FedCFamC1F 742

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Joslyne & Carrel [2023] FedCFamC1F 742

File number(s):	BRC 10297 of 2021
Judgment of:	SCHONELL J
Date of judgment:	22 August 2023
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Where the father sought to change his position such that he seeks for the child to live with him and spend time with the mother – Where leave is granted for the father to rely on his Further Amended Response – Where the mother sought an adjournment of the hearing to meet the change in position – Where there is no evidence about the Family Consultant’s views of the changed position - Where parties are entitled to know the case that they are to meet – Where it would be procedurally unfair to allow the matter to proceed – Matter adjourned.
Division:	Division 1 First Instance
Number of paragraphs:	15
Date of hearing:	22 August 2023
Place:	Brisbane
Counsel for the Applicant:	Ms Jardine
Solicitor for the Applicant:	HCM Legal
Counsel for the Respondent:	Ms Eviston
Solicitor for the Respondent:	Freedom Law
Counsel for the Independent Children's Lawyer:	Ms Wardle
Solicitor for the Independent Children's Lawyer:	Gary Rolfe Solicitors

ORDERS

BRC 10297 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS JOSLYNE

Applicant

AND:

MR CARREL

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	SCHONELL J
DATE OF ORDER:	22 AUGUST 2023

THE COURT ORDERS THAT:

1.Leave is granted to the respondent father to file a Further Amended Response and the father is directed to file the Further Amended Response in the usual way by 4.00 pm today and that it be served upon all parties.

2.The final hearing of these proceedings is adjourned to a date to be advised.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

EX TEMPORE REASONS FOR JUDGMENT

SCHONELL J:

1. These are proceedings for financial and parenting orders. The parenting proceedings involve the parties’ child who is five years of age. The competing applications in relation to the child on the mother’s part relate to an order for sole parental responsibility, that the child live with her and that the father spend time with the child on a supervised basis for a period of two hours occurring once a month.

2. As part of the mother’s application, there is also what could only be described as potentially an application by the mother for relocation subject to the outcome of the financial proceedings.  The application for relocation is to an undefined and unknown place so far as the Court is informed.

3. The father’s application is that the child live with the mother, that the parties share parental responsibility and that time increase from the current limited two hours supervised to ultimately an arrangement whereby he is spending time with the child from after school on Fridays to before school on Mondays in alternate weekends and for half school holidays.

4. The matter was listed for hearing on 10 March 2023. The first day of the hearing commenced yesterday. The mother’s cross-examination concluded yesterday as did her re-examination.

5. This morning the father sought leave to amend his relief seeking orders that the child live with him and spend time with the mother after, what is described as moratorium, for about three months, over a graduated period of time up to alternate weekends and half school holidays. 

6. I am informed that the father’s application springs from evidence that was given yesterday by the mother during the course of her cross-examination, particularly in relation to her relationship with her new partner and the extent of her knowledge about his past and in particular, his criminal antecedence and his involvement with child protection authorities.

7. Both counsel for the father and counsel for the Independent Children’s Lawyer (“the ICL”) identify what they say are significant shortcomings and limitations with respect to the mother’s insight and I presume from those submissions, a challenge to her capacity to properly parent, and also too with respect to her capacity to properly protect the child of the parties.

8. Exhibit 17 in the proceedings is a Child Protection Assessment of Harm and/or Risk of Harm in relation to the mother’s partner and the children of his former relationship. There are references in the document to “[Mr C]” and those references are a reference to the mother’s partner. Some care needs to be taken in relation to some of the references as it would appear that there is also a child who has the same name, I think;  it is not entirely clear from the form of the document.  That document identifies the following:

   The investigation was commenced [in] 2019 following concerns that [Mr C] and [Ms D’s] ongoing drug use and negative parenting choices was continuing to have a negative impact on the children.

   Throughout the assessment it was identified that despite the sister’s continuing care and support for the children [Ms D] and [Mr C’s] ongoing negative parenting choices continues to place the children at risk of significant emotional harm.

   Numerous attempts were made to contact both [Ms D] and [Mr C] throughout the assessment, in relation to the welfare of their children, and to discuss the current investigation, however neither parent engaged. This behaviour mirrored the behaviour reported by the sisters who confirmed they have had limited to no contact from both parents, which besides having a negative emotional impact on the children, has also impacted on the sister’s ability to make general parenting decisions, including enrolling [E] into school or obtaining a birth certificate. Review of the child protection history shows this being a long-standing pattern for both parents, with [Mr C] reportedly having limited to no contact with the children for the majority of their lives, and [Ms D] having on and off again contact with the family. Both parents have also had sporadic to non-existent contact with the department during previous interventions limiting the department’s ability to implement supports for the family.

   …

   Risk and [c]omplicating factors:

   •[Mr C] has had little to no involvement in the children’s lives, having to be reminded about their birthdays;

   •Despite reporting having a new job [Mr C] has been providing no financial support to [Ms F] and/or [Ms G] for caring for their siblings;

   •On one occasion when [Mr C] was meant to be caring for [E], he left [E] at a train station for an entire day;

   •[E] and [H] have advised that [Mr C] also uses drugs;

   •Despite numerous attempts to contact and engage [Mr C], he has been unwilling to engage with the department in relation to his children;

   •[Mr C] has advised he is currently homeless and is residing between places;

   •[Mr C] has a history of violent behaviours towards [Ms D] resulting three previous domestic violence orders;

   •[Ms D] is also believed to be homeless with the department aware she was previously evicted from two different residences over a three month period. Information indicates th[at] [Ms D] is around the Brisbane area possibly residing with a man named ‘[Mr J]’;

   •[Ms D] has a long history of drug use including [illicit drugs] indirectly and directly exposing the children to this with the children able to articulate what [Ms D’s] drug use looks like, how frequently she was using, her behavioural shifts, how she uses and what the drugs look like;

   •[H] has been reported to have previously been residing with her mother in the Brisbane and engaging in [illicit drug] use and criminal activities. This has resulted in her being incarcerated on multiple occasions.

   •[H] has previously advised that [Ms D] was aware of her drug use and encouraged it.

   •[H] is currently incarcerated at [a youth detention centre].

   •[E] and [H] have previously (in past IA) presented as fearful of [Ms D] with [E] observed to sob and become withdrawn at the thought of [Ms D] finding out what [E] has told the department. [H] was previously (in past IA) observed to also be withdrawn and hesitant to tell child safety what had been going on.

   •In the previous investigation and assessment [Ms D] disengaged from the department and was unable to be contacted. This has continued into the current IA with [Ms D] being uncontactable and reportedly advising [H] not to advise he siblings where she is due to not wanting to be found;

   •Both [Mr C] and [Ms D] have a criminal history in relation to drug related charges as recent as […] 2018 […];

   •[Ms D] also has a criminal history in relation to stealing offences with the most recent offence occurring […] this year (2019);

   •Due to [Mr C] and [Ms D] being uncontactable, [Ms F] and [Ms G] have been unable to obtain the children’s birth certificates or forms of ID which has impacted on their ability to enrol into schools;

   •[Ms F] and [Ms G] have advised they are struggling financially in meeting the needs of the children, with [Ms F] reporting having previously been unable to pay [E’s] school fees and as such he was unable to engage in sports.      

9. There is also in evidence, being Exhibit 16, a document described as “Queensland Court Outcomes” and it identifies in relation to the mother’s partner a recent appearance before the Town B Magistrates Court in 2021, where convictions were recorded in relation to various drug matters.

10. The Family Report in relation to the parties and their child was prepared by a Family Consultant and bears the date of 8 August 2023. Relevant to some of the submissions advanced by the father’s counsel and by the ICL are the following paragraphs in the report:

    143. It remains a concern of the writer that [Ms Joslyne] entered a new relationship with [Mr C], knowing little about his personal, relationship and parenting background at such a time as she espoused significant personal vulnerab[i]lity. At updated interviewed [Ms Joslyne] appeared to remain in possession of limited information about [Mr C’s] background with substance use, criminal history, and involvement with child protective services, nor did the provision of such superficial information appear to be concerning to her.

    144. The writer does not suggest that [Mr C] has not made the personal changes expressed by them both at interview, although noting [Mr C’s] responses also presented as vague, evasive, and incomplete, however one might boldly suggest [Ms Joslyne’s] acceptance of this in [Mr C] is in stark contrast to what she is seemingly prepared to accept in the father.

11. At the time of writing that report, there was no application by the father for primary care of the subject child. There appears to be no issue in the proceedings that the documents in relation to the mother’s partner, being Exhibits 16 and 17, have been available for inspection since early June of this year. I am informed that the father’s solicitors filed a Notice of Address for Service on 6 July 2023. I note that the mother’s counsel alludes to a proposition that the father’s solicitors have had a more substantial involvement with the matter than what would appear from having come onto the record on 6 July 2023.

12. These are proceedings that relate to the welfare of a very young child. I am required to make orders ultimately that are in that child’s best interests. I have heard the mother’s cross‑examination. I have not yet heard any cross-examination of the mother’s partner or for that matter the father. There is no evidence before me as to what the Family Consultant would view of the father’s proposed Further Amended Response should I grant him leave to rely upon that document. There is currently no evidence before me that if leave were granted of how that child would deal with a separation from his primary carer or for that matter separation from his half-siblings. There is no evidence from the Family Consultant of her view of the father’s parenting capacity as a primary carer of a very young child.

13. Weighing all of the relevant considerations that I am required to have regard to, I am satisfied that leave should be granted to allow the father to amend the relief that he currently seeks to prosecute an application for primary care of the subject child. The consequence, however, of granting that relief involves a consideration of what is to happen to the balance of the hearing and whether the matter can proceed to finality in the course of this week.

14. The father and the ICL contend that it can.  The mother asserts that it cannot.  I am not satisfied that it is procedurally fair to the mother or for that matter to the parties, albeit that the father and the ICL would contend otherwise, that they hear the views of the Family Consultant for the first time either orally during some mooted telephone conference or when she comes to give her evidence later on this week.

15. Parties are entitled to know the case they are to meet and all of the evidence that is marshalled for or against their case. To permit otherwise is in my view to permit a matter to proceed in a procedurally unfair way and thus is contrary to law. I do not propose to proceed contrary to law. The inevitable consequence is that the proceedings must be adjourned and I will propose now to deal with when I hear further submissions from the parties as to how that is to occur.  Accordingly, I will make the following orders:

    (1)I grant leave to the father to rely on a Further Amended Response and direct that that Amended Response be filed in the usual way by 4.00 pm today and served upon all parties.

    (2)I adjourn the final hearing of these proceedings to a date to be fixed. 

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell.

Associate:

Dated:       30 August 2023