KESTLE & ROLLAND

[2015] FamCA 1001

FAMILY COURT OF AUSTRALIA

KESTLE & ROLLAND [2015] FamCA 1001

FAMILY LAW – CHILDREN – With whom a child lives – Best interests of child
FAMILY LAW – CHILDREN – Sole parental responsibility – Where person is not the children’s parent
FAMILY LAW – ENFORCEMENT OF ORDERS – Recovery order

Family Law Act 1975 (Cth)

APPLICANT: Mr Kestle

RESPONDENT: Mr Rolland

INDEPENDENT CHILDREN’S LAWYER: Mr Haddock

FILE NUMBER: CAC 1469 of 2015

DATE DELIVERED: 24 September 2015

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 24 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Thomas

SOLICITOR FOR THE APPLICANT: Sinclair Whitbourne

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Haddock

Orders

NOTING THAT:

1. The Respondent father has now failed to appear in Court on three occasions, and has not complied with the Orders of this court made on 22 September 2015 to deliver the children to the Applicant

IT IS ORDERED THAT:

1. The Applicant, Mr Kestle, the uncle to the children, will have sole parental responsibility both on a long term basis and on a day to day basis in respect of B, born … 2003, C, born … 2004 and D, born … 2005 (“the children”).

2. The children will live with the applicant, Mr Kestle.

3. Pursuant to Section 67Q of the Family Law Act 1975 a recovery order issue authorising and directing the Marshal, all officers or agents of the Australian Federal Police and all officers of the police forces of all states and territories of the Commonwealth of Australia to take possession of the children, B, born … 2003, C, born … 2004 and D, born … 2005, and to deliver the children to the care of the Applicant forthwith.

4. The father have liberty to apply to the Court regarding what time he might spend with the children.

5. a.     Each of Mr Kestle and Mr Rolland and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of B, male, born … 2003, C, male, born … 2004 and D, female, born … 2005 from the Commonwealth of Australia.

   b.    B, C, and D be and are hereby restrained from leaving the Commonwealth of Australia.

6. It is requested that the Australian Federal Police give effect to the preceding order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s name(s) on the Watch List for a period of two years.

7. Upon expiration of the period referred to in Order 6 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the children’s names from the Watch List. 

8. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

9. The matter be removed from the Pending Cases Inventory.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1469 of 2015

Mr Kestle

Applicant

And

Mr Rolland

Respondent

REASONS FOR JUDGMENT

1. The history of this matter has been reviewed in the last ex tempore judgment I delivered on 22 September 2015.  On that day, I made, what were then still interim orders, relating to the care of B, C and D and made certain orders indicating that, if the matter came back before me today, without any further attendance or involvement from the respondent, Mr Rolland, the probability was that I would make orders – including a recovery order – in relation to the children. 

2. The material provided since that time indicates that Mr Rolland has persisted with his unusual, if not bizarre, documentation of his situation and the way he looks at life and the current circumstances, in particular.  I note from the affidavits filed in court this morning that he has erected some sort of sign at the house prohibiting anyone from trespassing (he says) in the house.  Of course, he has no authority to do that but, leaving that to one side, the terms of the notice itself are sufficiently unusual, if not so bizarre, that they would give rise to a refreshing of my concerns about Mr Rolland’s current mental capabilities and state and, in particular, his ability properly to look after the children, in circumstances where they clearly need to be properly looked after. 

3. As such, it seems to me, as he has again failed to appear in this court and I am satisfied that all reasonable efforts have been made to communicate with him about what is happening that I should consider making final orders, for two reasons:  (1) there is a need for finality and Mr Rolland has had every reasonable opportunity to indicate that he wished to oppose the orders in a proper, formal and helpful way and has failed to do so, and (2) that it is important from Mr Kestle’s point of view that he should not be continually dragged back to this court with consequent expense and emotional investment. 

4. In coming to the position of making final orders, I am conscious of the fact that these orders relate to the children being placed with a person who is a relative but not a parent and, as such, it is both a difficult and complex decision to remove children from their only remaining parent. 

5. But in the circumstances, I have little doubt that that is the appropriate step for me to take.  In this matter, I have already indicated the issues that I rely upon in reaching the conclusions I have, but I will reiterate them briefly, for the purposes of the record, as this is a final decision so far as the children are concerned in this matter – in so far as there can ever be a final decision about children’s matters. 

6. First, I am conscious of the fact that the orders I made on an interim basis and which I propose to make on a final basis involve vesting sole parental responsibility in Mr Kestle.  I am satisfied from the material that has been filed that he is a person who has an interest in the children's welfare, has accepted the obligations and the benefit of his sister’s will and has accepted the fact that he would take over the responsibility for these children in the tragic circumstances in which they now find themselves. 

7. I am satisfied from the material filed that he can physically, emotionally and intellectually provide support for the children.  I am satisfied that he is in a position to make the best decisions for them in the complicated circumstances in which they are now placed and have been placed for some time. 

8. I am satisfied that he is a person who is not going to expose the children to, or allow the children to be exposed to, any form of domestic violence.  It is one of the factors I have to take into account under the Act, and I am stating it for completeness, not suggesting that Mr Kestle is involved in any such activity. 

9. I am satisfied that, by way of contrast, the children’s ability to thrive and, indeed, survive under the care of their father is at least problematic.  The only communications from the father have been extraordinary documents which bear no semblance to anything that might have been of any use to the Court and which would indicate, if not some form of disability on the part of the father, at least a failure to be part of ordinary sensible life and also the procedures required by this Court. 

10. I find in addition, the failure on the part of Mr Rolland to make any attempt to be at Court or to communicate other than in the strange ways he has chosen to do so indicates a lack of understanding of his obligations as a parent and a lack of capability on his part properly to exercise the responsibilities and the privileges of being a parent.  In my opinion, at the very least at a prima facie level, the documents that have been sent to this Court in various forms by Mr Rolland indicate a divorce on his part from reality and a confusion as to what is happening and what is best for the children. 

11. In fact, one of the interesting things about the documents is how little they refer to the children and how often they make reference to Mr Kestle’s supposed rights, concocted out of some strange cocktail of obscure (in most cases superseded) allegations about rights that are not relevant to these proceedings and certainly are not supported by any evidence that could give rise to any finding in Mr Rolland’s favour. 

12. Accordingly, although it is a major decision, it seems to me that there is little choice in this matter other than to formally pronounce an order in final terms that the children should be the sole parental responsibility of their uncle, Mr  Kestle.  It follows, it seems to me, that the children should also live with him on a continuing basis.  I have indicated a few moments ago my acceptance of the arrangements that are proposed for them as being, at this stage, in their best interests. 

13. Under the Act, it is to be my paramount consideration that the children’s best interests should be sought and, so far as possible, implemented. 

14. I am also aware of the fact that the Act informs me that one of the factors that would be important for the children’s welfare is that they should have the benefit, if they can, of a meaningful relationship with their father, he being their sole surviving parent.  In this regard, I have no evidence that would demonstrate to me that the children are deriving benefit from their association with their father. 

15. That is not to say that there could not be some benefit in that, but I have no evidence to support such a contention.  The fact that I have no such evidence is exclusively the responsibility for and the fault of the children’s father. 

16. I am conscious of the need to protect them from physical or psychological harm or from being exposed to abuse, neglect or family violence.  I am not satisfied that if they are with their father, given the evidence that I have before me in relation to violence, that they might not be exposed to violence.  I have no evidence to suggest that this would be the case if they were with their uncle. 

17. I am also concerned that the children may be the subject of psychological harm if they remain with their father, given the nature of his correspondence, his actions, activities and his conduct about the children, which appear to be more centred on him than upon the children.  Consequently, in my opinion, it would satisfy a need for their protection to remove them from the physical care of their father at this point. 

18. I am also at this stage unable to make any finding about the views expressed by the children although, given the circumstances and their ages (except perhaps in the case of B) in my opinion, their views may not receive a great deal of weight even if they indicated they wished to remain living with their father.  I say this simply because, again, I am unable to make any comment about the nature of the care that they are receiving from their father. 

19. I do note that he has apparently caused the children to be removed from school, at least in the last few days, on the basis that he advised the school that they were about to be abducted.  This would indicate, if anything, a conclusion that they need protection from their father and, moreover, that they are likely – and I cannot put it any more highly than that – to be psychologically at risk in being in circumstances with their father where he has ideas, and what appear to be delusional ideas, about what is occurring both in relation to him and the children. 

20. I am also conscious of the fact that the father has failed, in my opinion, to fulfil his obligations both to maintain the children and to provide them with the support they need both intellectually, psychologically and emotionally in these circumstances and, indeed, his conduct, if it has in any way been communicated to the children – (and it is hard not to infer that it must have been) in his comments and the fact that there is a notice sitting in the window of the children’s home – it is hard to imagine this has not had a profound and difficult and deleterious effect upon the children. 

21. There is no doubt that the change in their circumstances will be a significant one.  I am, however, satisfied that, while it will be significant, it will not be to their disadvantage and moreover, in my opinion, it is probably likely to be a relief for them to be out of the situation in which they currently find themselves. 

22. I have looked carefully at the question of what relationship the children might have with their father but, in the absence of material from him about his intentions regarding where he will live when, it seems likely, he will be removed from the house in which he is currently living.  It is not his house.   Accordingly, I am unable to make any orders or even give adequate consideration to what sort of orders might be made about time the children spend with their father. 

23. Even if I had more detailed information and that appeared on the surface to be satisfactory, I am left with a significant concern that if the children were with their father at the present point, there may be some risk at least of injury to them and, possibly more significantly, the removal of the children from this jurisdiction or potentially from Australia.  I am somewhat relieved of my concerns in this regard by the fact that it would appear that Mr Rolland has very little, if any, money.  Accordingly, his options may be limited by his poverty rather than by his imagination. 

24. There are no other matters in particular which I take into account other than the circumstances in which the matter has been before the Court, to which I have referred in sufficient detail previously.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 24 September 2015.

Associate:

Date:  16 November 2015