Lane and Steiner
[2013] FamCA 179
FAMILY COURT OF AUSTRALIA
| LANE & STEINER | [2013] FamCA 179 |
| FAMILY LAW – CHILDREN – Final Orders – order that child live with the mother – order that mother have sole parental responsibility for the child |
FAMILY LAW – PRACTICE AND PROCEDURE – leave granted for Independent Children’s Layer to make an oral application for a location order – matter adjourned to a fixed date for mention
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Lane |
| RESPONDENT: | Mr Steiner |
| INDEPENDENT CHILDREN’S LAWYER: | Murray Lyons |
| FILE NUMBER: | CSC | 448 | of | 2010 |
| DATE DELIVERED: | 7 March 2013 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 7 March 2013 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | No appearance by applicant |
| SOLICITOR FOR THE RESPONDENT: | Respondent in person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Murray Lyons |
Orders
J born June 2007 (“the child”) lives with the mother.
Ms Lane (“the mother”) have sole parental responsibility for the child.
The mother have sole parental responsibility for decisions in relation to the long term and day to day care, welfare and development of the child including but not limited to:-
(a)the child’s education;
(b)the child’s religious and cultural upbringing;
(c)the child’s health; and
(d)the child’s name.
IT IS NOTED
The court leaves in place order 4 of the order made by the Federal Magistrate on
22 November 2010.IT IS FURTHER ORDERED
UNTIL FURTHER ORDER
The father is hereby restrained from communicating or approaching either the child or the mother.
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.
Leave be given to the Independent Children’s Lawyer to make an oral application for a location order which is returnable before me at 9.00am (Eastern Standard Time) or 8.00am (Eastern Summer Time) on 26 March 2013.
Leave be given to the parties to attend by telephone on 26 March 2013 by dialling … *…*.
Any disclosure of the mother’s address is to be retained by the court and the Independent Children’s Lawyer and not made available to the father or any person on his behalf, such address to be kept separate from the file.
IT IS FURTHER NOTED
The father’s current address for service is B Street, C Town, Qld, … and his current mobile telephone number is ….
The father’s email address is ….
IT IS FURTHER DIRECTED
The father inform the Independent Children’s Lawyer within twenty four (24) hours of any change of his address or mobile telephone number.
A copy of the reasons for these orders be taken out and placed on the court file.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lane & Steiner 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 CAIRNS |
FILE NUMBER: CSC 448 of 2010
| Ms Lane |
Applicant
And
| Mr Steiner |
Respondent
REASONS FOR JUDGMENT
These are parenting proceedings which are between Ms Lane, the applicant mother, and Mr Steiner, the respondent father, in relation to their daughter, J (“the child”), who was born in June 2007, and is now aged 5, almost 6. The proceedings were listed for hearing today, but there was no appearance by the mother. The issue, at least at present, is whether the child should have some form of communication and/or supervised time with the father, or not. There seems and is no issue that the child should, on the material presently before the Court, continue to live with her mother, and that the mother should have sole parental responsibility. Orders to that end were made by Coker FM on 22 November 2010.
The mother has not filed any substantive affidavit material since 2010, but she did engage in the process with the Family Consultant, when a report was prepared in July 2012. It appears that the mother engaged in that process last year, but then, towards the end of last year, filed a notice of ceasing to act; to all intents and purposes, walking away from the proceedings. The Family Consultant sets out a background dispute, of which I note. The Independent Children’s Lawyer sets out a chronology which is as follows:-
DATE
EVENT
… 1986
[Mr D] born
… 1987
[Mr Steiner] (“Father”) born
… 1989
[Ms Lane] (“Mother”) born
2005
Parties commence relationship according to Mother
May 2005
Father says parties commence cohabitating in [E Town] New South Wales
May/June 2005
Mother says she starts living with father in [F Town, Qld]
November 2005
Father says parties move to Victoria
… .06.2007
[J] (“the child”) born
May 2008
Mother meets [Mr D]
October 2008
Father says he returned home and found a man in his 30’s at his home telling him he is now living with [the mother] and he had to leave. He says a scuffle issued
October 2008
Father says he tells mother he is leaving to go to [F Town]. Mother says she wants to go with him and they both agree to go and have a fresh start in [F Town] .
Early 2009
Father says he meets [Mr D] when someone tells him he can buy drugs off him in [F Town]
April 2009
Father goes to Melbourne for his grandfather’s funeral
April 2009
On father’s return [Mr D] tells him that he is now with the mother
June 2009
[Mr D] claims father threatens to kill him
July 2009
Father charged with manufacturing methamphetamines.
August 2009
[Mr D] claims that father and his brother, [Mr G] make a threat to kill him while at the … Service Station [F Town]
Early September 2009
[Mr D] alleges he was physically assaulted by the father at the … Service Station in [F Town] and makes a threat “I am going to stab you and burn your place down”
Sometime in September 2009
Mother says she ended relationship with father
19.09.2009
Police raid [F Town] home and arrest and charge [the father] and [Mr H]
… .09.2009
Father appears in Court. Didn’t apply for bail. Yells out “I love you guys … look after my daughter”. Remanded in custody until … October 2009
… .09.2009
[Media report] referring to father’s arrest
Late September 2009
[Mr D] alleges that [Mr G] attacks him and stabs him multiple times.
October 2009
Mother commences living with [Mr D] at [I Street, K suburb, Qld]
October 2009
Mother and [Mr D] relocate to [Northern Qld] and commence living at [I Street, K suburb]
20.11.2009
[Mr D] alleges he has received a letter from the father threatening violence against him
… .07.2010
Father released on parole
… .07.2010
Father pleads guilty to Drug Misuse Act, defence is in Supreme Court
Father sentenced for trafficking. Court ordered that a period of imprisonment be suspended for an operational period of 2 years and 6 months. Father had served 297 days in presentenced custody in relation to that sentence and that time was declared as time served
Father released from custody
… .07.2010
Mother says she informed by the Police that father released from jail the day before
14.07.2010
Mother says father arrives at her house with his mother, [Ms M] and asks for time with [the child] which mother allows
14.07.2010
Father says he told mother that he would be keeping [the child] a couple of weeks to make up for the time he has missed over the last 10 months
… .07.2010
[Media report] referring to father’s drug conviction
Mid July 2010
Father says he tells mother that [the child] is staying with him until a partner she is staying with has cleaned up their act
02.08.2010
Mother attends on Solicitor, [Mr N’s] office
03.08.2010
Mother files Application seeking location order and recovery order
04.08.2010
Recovery order issued on Mother’s Application on an ex-parte basis to find and recover [the child]. Father has fourteen (14) days to file material. Matter adjourned until 24 October 2010.
06.08.2010
[The child] recovered by [F Town] Police from [O Street F Town] and mother travels to [F Town] and collects her daughter
… .08.2010
Mother and [Mr D] become engaged
Mid August 2010
[Mr G] in prison for unlawfully wounding [Mr D]
… .09.2010
[Mr D’s] rental property destroyed by fire. Father charged with arson of the said property and remanded to [prison].
27.09.2010
Mother’s Application concerning [the child] mentioned in Court, mother ordered to file Amended Application and father his response and matter to be mentioned on the 12 October 2010. Father fails to appear in Court.
25.10.2010
Mother files amended Application seeking [the child] live with her and she has the sole parental responsibility and the father has time with the child as Court sees fit.
25.10.2010
[Mr N] (Mother’s Solicitor) files Affidavit saying in his profession experience the Respondent will not be released from jail on the arson charge until the … May 2012.
26.10.2010
Mother’s Application mentioned in Court and adjourned until 7 March 2011.
… .11.2010
[Mr G] released
22.11.2010
Mother given leave to proceed in Federal Magistrates Court ex-parte. His Honour Federal Magistrate Coker orders that the Mother have sole parental responsibility and that:-
1. [The child] lives with mother; and
2. Mother can relocate.
3. If the mother doesn’t communicate with her Solicitor for four (4) weeks then her Solicitors are to advise the Court.
07.03.2011
Order made appointing ICL and adjourning matter until the 17 May 2011 at 9:30am.
05.04.2011
Father files Affidavit
19.04.2011
ICL writes to father and mother’s Lawyers enclosing questionnaires and authorities
20.04.2011
ICL files Notice of Address for Service
27.04.2011
ICL issue subpoena to Police seeking information from father/mother, [Mr G] and mother’s partner
05.05.2011
ICL writes to father seeking his material and subpoenaed material
05.05.2011
ICL writes to mother’s Solicitors seeking return of questionnaire and authorities
… .05.2011
Father sentenced for three (3) counts of arson in District Court. 4 year head sentence and [His Honour] fixed parole eligibility date of … December 2011. Father spent 232 days in presentence custody prior to that date and that was declared as time served towards his sentence
17.05.2011
Mother ordered to file amending Application. Matter transferred to the Family Court of Australia
20.05.2011
Parties advised next mention 13 September 2011 at 9:30am before Family Court of Australia
… .08.2011
Father appeared in Supreme Court in relation to breach proceedings. [His Honour] activated the suspended sentence in full. His Honour ordered that the activated sentence run concurrently with the sentence he is currently serving imposed by the … District Court. His Honour further ordered that his new parole eligibility date be fixed at … March 2012.
09.08.2011
ICL writes to mother’s lawyer seeking her further material
13.09.2011
Matter mentioned by telephone before His Honour Justice Benjamin – no appearance for the mother. Father appeared from jail. Matter adjourned to the Registrar in December. Father mentions he wants telephone time. Father told to file Application.
23.01.2012
ICL writes to Court seeking a further mention.
01.02.2012
While in prison, father engages with ATODS and completes four (4) group counselling sessions through the Step 4 Relapse Management Program.
… .05.2012
Father released from prison
05.07.2012
Report writer has telephone interview with mother
Report writer has interview with [the father] at Court House in Brisbane
12.07.2012
Family Report signed by Report Writer, [Ms Q]
16.07.2012
Order made releasing Family Report
The mother is in a relationship, or was in a relationship, with Mr D, who was born in 1986 and, as such, is 27. The father was born in 1987, and is aged 25, and the mother was born in April 1989, and is soon to be 24. It seems that the mother and father commenced a relationship in 2005, and moved to various places. The child, J, was born in June 2007. The breakup of this relationship was clearly difficult for all involved, with the mother complaining that the father was involved in the manufacture of drugs, and the father complaining that Mr D was a drug user and/or a drug dealer.
Mr D made, in his affidavits, a number of allegations in relation to assaults on him by the father, to which the father, at some levels, demurs. The father was charged with manufacturing amphetamines, and subsequently was remanded in custody. The father’s brother, Mr G, was involved in an altercation with Mr D, and there is an issue as to how this occurred, or why it occurred, and Mr D was stabbed on a number of occasions. As a consequence of which, the father’s brother was sentenced to a term of imprisonment. The father was released on parole in July 2010.
On the day that he was released, he pleaded guilty to an offence in the Supreme Court, and he was released from custody. The father sought to spend time with the child in July 2010, at which stage I note the child had just celebrated her third birthday. The father retained the child, and the mother needed to obtain a location and recovery order for the child to be returned to her. The child was recovered on 6 August 2010; about three weeks after the child had been taken. In September 2010, Mr D’s property was destroyed by fire. The father was charged with arson of that property, and was remanded in custody.
In May 2011, the father was sentenced on the counts of arson, and he was subsequently released from jail in May 2012. There is an allegation that, whilst the father was in jail, he wrote a letter to the mother, which is annexed to the mother’s affidavit. I do not know whether that letter is conceded by the father or not. I have asked the father, and he conceded that he wrote the letter. The letter was a frightening and terrifying letter, at any aspect, and in November 2011, Coker FM made the orders to which I had alluded earlier.
Coker FM observed that this was the first time he had allowed a relocation on an ex parte basis, and set out in his reasons why that was appropriate. The father has now come back to this Court since his release in May of last year and said, through the Family Consultant, that he has reformed, and his interest now is not in causing harm to the mother or her partner, but to resuming and having a relationship with his daughter. From the evidence of the Family Report, the concession of the father, and on the submission of the Independent Children’s Lawyer, there is no doubt that the child should remain in the primary care of the mother, and that order should be made to that end, and I propose to do so.
Similarly, having regard to the serious allegations to which I have referred to beforehand, the presumption of equal shared parental responsibility is clearly rebutted, and having regard to all of the facts and circumstances, it is appropriate that the mother, even on the father’s case, have sole parental responsibility for the child, and I intend to make that as a final order. The Family Consultant observes, quite rightly, that generally it is in the best interests of a child to have a relationship with both biological parents. That is unashamedly the position of the Family Courts of Australia.
However, that must be read in the context that the child and the primary carer of the child must be safe. In this case, there really has to be tested the question as to whether the domestic violence and terror that was inflicted on the mother is at an end, or whether there is an unacceptable risk that it will continue into the future. That is a matter for me to determine after hearing and weighing all of the evidence. The other aspect which needs to be determined is whether the mother’s mental or psychological health has been so impacted by the events over the time, that to facilitate time between the child and the father would undermine her ability to parent. I do not know if that is the case, or if it is not the case.
But the mother needs to engage in these proceedings, so that a court can find out what those circumstances are. I intend to make those final orders as I have indicated. I do not intend to make further orders in relation to time at this stage, but what I will do is give the Independent Children’s Lawyer leave to write to Centrelink, warning them that this Court is contemplating making a location order, bringing the matter back before me in late March, and will make that location order and it will only be made available to the Independent Children’s Lawyer and, clearly, not the father, and then see if the mother is required to engage in these proceedings.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 7 March 2013.
Associate:
Date: 7 March 2013
Key Legal Topics
Areas of Law
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Family Law
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Evidence
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Criminal Law
Legal Concepts
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Procedural Fairness
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Charge
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Sentencing
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Appeal
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