LEOPOLDO & PETTY

[2013] FamCA 1080

FAMILY COURT OF AUSTRALIA

LEOPOLDO & PETTY [2013] FamCA 1080

FAMILY LAW – CHILDREN – Residence – Interim Orders – With whom a child lives with and spends time with – Best interest of the child – Abuse and Family Violence – Where there is a history of family violence between the parties – Where the mother has engaged in abusive and violent behaviours and has persistent drug alcohol and other substance abuse issues together with serious mental health concerns – Where the overwhelming concern is to protect the children from physical or psychological harm and from being exposed to abuse and family violence – Where no proposal put forward by the mother as to time to spend with children – Where the court ordered the children live with the father and that time with the mother be reserved.

FAMILY LAW – INJUNCTION – Restraining the mother from attending the father’s residence and the Paternal Grandparent’s residence – Where the mother has attended the father’s residence and removed one of the children from his care; Where the mother has attended the children’s school and removed both children without the father’s knowledge.

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – where leave is granted to the Applicant to serve subpoenas to obtain material from independent sources.

FAMILY LAW – PRACTICE AND PROCEDURE – Hearing – Where leave is granted to the applicant to proceed to final hearing on an undefended basis – Where the time for the respondent to file a response has expired.

Family Law Act 1975 (Cth) s 60CC, 62B, 65DA.

APPLICANT: Mr Leopoldo

RESPONDENT: Ms Petty

FILE NUMBER: TVC 727 of 2009

DATE DELIVERED: 27 August 2013

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 27 August 2013

REPRESENTATION

SOLICITORS FOR THE APPLICANT: J. Hamilton & Associates

THE RESPONDENT: No appearance

Orders

1. This Application be heard with priority.

1. The time for service of the Application on the Respondent be abridged.

1. The childrenB born … 2003 and C born … 2005 (“the children”) live with the father.

1. An injunction issued restraining the Respondent from entering D Street, Suburb E, F Street, Suburb F or any residence in which the father resides at or is located in from time to time.

1. Leave be granted to the Applicant to serve subpoenas on the G Town Base Hospital, G Town Mental Health and the Queensland Police Service.

1. The Respondent’s time spent with the children be reserved.

AND IT IS FURTHER ORDERED THAT:

1. Leave be granted to the Applicant to seek to have his Application for final orders heard on an undefended basis in G Town on a date to be advised by the Registry in the week commencing 28 October 2013.

1. The Applicant give notice to the Respondent of these Orders and his intention to seek final orders in the week of 28 October 2013.

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 by this Court under the pseudonym Leopoldo & Petty 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 TOWNSVILLE

FILE NUMBER: TVC 727 of 2009

Mr Leopoldo

Applicant

And

Ms Petty

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application for interim orders as follows:

   ·That the children B born in 2003 and C born in 2005 live with the father;

   ·that an injunction issue restraining the mother from attending D Street, Suburb E and F Street, Suburb F or any other residence in which the father resides or is located from time to time;

   ·that leave be granted to the applicant to serve subpoenas on the G Town Base Hospital, G Town mental health and the Queensland Police Service. 

2. The matter has a long and to a degree, unfortunate, history.  It is set out in the father’s affidavit filed 12 August 2013.  The parties’ lives have been steadily punctuated by what appears to be the mother’s persistent drug alcohol and other substance abuse issues together with what appears to be serious mental health concerns which have from time to time seen her as both an involuntary, and I think, on occasions voluntary inpatient of various mental health units.

3. It appears as though the mother’s behaviour, whilst on one or two occasions has been rehabilitative in nature, appears since at least separation to have been progressively worsening.  Moreover it appears as though the mother will on occasion attend places where the children and/or the father are located and refuse to leave.  On other occasions she has attended and, in effect, abducted the children.  On one occasion in the past where that has occurred a friend of her has contacted the father and arranged for him to have the children picked up.  That occasion seemed to result in the friend being the victim of violence.  Indeed, violence seems to be a steady part of the mother’s repertoire.

4. The mother was, according to paragraph 16 of the father’s affidavit, recently made an involuntary patient of the G Town Hospital for approximately three months and as at the date of the filing of that affidavit had just been released.  On 24 May in anticipation of her release, the father’s solicitors wrote to the mother, however between the date when the instructions to prepare that letter had been given and when it was sent the mother attended upon the father’s home and removed C from his care.  That is the occasion which involved the friend contacting the father and the occasion of violence to which I have referred.

5. The father deposes that he is concerned that the mother will again attend upon his home and seek to remove the children.  There is an occasion also deposed to by the father that on 6 May the mother attended the children’s school and removed both of the children.  On that occasion the children were staying with the father’s parents as he was working away on roster.  The father’s affidavit also deals with the history of violence between the parties and the drug and alcohol abuse which has beset the mother’s history.

6. It seems clear that the mother acts precipitously, on occasions is under the influence of alcohol, prescription or synthetic drugs or illicit drugs and is prone to violence or other intimidatory behaviour when in the presence of the father.  All of this presents a most unsatisfactory picture in relation to the mother’s involvement in the children’s lives.  That is not to say that there is not benefit in both children having a meaningful relationship with the mother but rather to say that the means by which that meaningful relationship can be fostered and promoted need to be carefully thought through and not the subject of random, impetuous and impulsive behaviours on the mother.

7. I note that according to the father’s material he estimates that the child B in 2012 has only spent three days with the mother and the child C at most 10 nights, and this year B has spent one night with the mother and C no more than seven nights.  The father frankly concedes that C does wish to communicate and spend time with the mother, however B is adamant that she does not want to see the mother.  That, of course, given B’s age is a matter that needs to be given some weight.

8. However the overwhelming concern which the material raises is the need to protect the children from physical or psychological harm or from being exposed to abuse or family violence.  I should make it clear that the material allows an inference that the mother has subjected the father to family violence in the presence of the children and that on occasion her behaviour in relation to the children would at least on one view satisfy the definition of abuse.  As I said that appears to me to be the major consideration in this case.

9. As to the additional considerations contained in s 60CC(3). I have already noted the views expressed by the children.  I have observed that the nature of the relationship with the children of the parents, at least insofar as the mother is concerned, on occasion satisfactory, although B does not wish to see her mother.  It appears as though the children’s relationship with the father is sound and that he has been their stable parent over probably the course of their lives.  As to s 60CC(3) the mother clearly has an impulsive approach to involving herself in the children’s lives.  That is not to be seen as a personal criticism of her.  Clearly her life is beset with psychiatric concerns and behavioural problems.

10. S 60CC(3)(ca) doesn’t appear to be relevant save that the father has fulfilled seemingly all of the obligations to maintain the children at least in recent times.  As to s 60CC(3)(d) it is the father’s position that the children should continue to have a relationship with the mother and in any event their time with her in recent years has been very slender.

11. S 60CC(3)(e) is not relevant here.  Subs (f) is relevant in that the mother’s mental illness and her addictive behaviours reflect poorly upon her capacity to provide for the needs of the children; (g) is not relevant; (h) is not relevant; (i) is relevant but I’ve already covered it; (j) is relevant in that there is a history of family violence.

12. As to (k) which is invoked by virtue of the family violence order that presently exists against the father.  I understand from the father’s material that that order was not opposed by him on the basis of non-admission because of his financial circumstances at the time.  In those circumstances although there is a family violence order which applies I do not draw any relevant inference from that of the kind in subparagraph (k), (l) and (m) are not relevant here. 

13. So against a weighing of those considerations in my view particular weight, as I’ve indicated, needs to be given to the need to protect the children from physical and psychological harm and it is that which I give pre-eminent weight to in weighing the s 60CC factors.

14. The orders which the father seeks I have already addressed.  In my view the orders which he seeks in relation to the children living with him are in the children’s best interests.  I know nothing about the mother’s circumstances at the moment other than that it appears as though she is unlikely to be in stable accommodation.  The only option for these children is at least on an interim basis is that they live with the father.  I am also satisfied that the mother’s conduct in the past justifies an order restraining her from attending at the father’s residence.  The father’s material makes it clear that on occasions on 48 hours notice he can be required to work away from the G Town district.  The children in those circumstances live with the paternal grandparents.  Whilst there is no recent history of the mother attending that residence it nonetheless seems sensible from the children’s perspective to preclude her from doing so given her state and her activity when she attends the father’s premises from time to time.  

15. The final order relates to subpoenas.  Clearly it is in the interests of the children to have the material that can be obtained from independent sources before the court.  So for those reasons I am satisfied that all of the orders sought by the father are in the children’s best interests and will make them on an interim basis.

16. There is one final matter and that is as to what time the children should spend with the mother.  There is no proposal by the mother as to the circumstances or times when she should spend time with the children.  The father by his solicitor has told me that it is his intention to write to her suggesting that supervised time be commenced if possible at the G Town centre.  At the moment it is simply impossible to say whether the parties would satisfy the intake requirements of that centre, and in those circumstances the only sensible order to make is that the mother’s time with the children, if any, be reserved.

    RECORDED  :  NOT TRANSCRIBED

17. I am satisfied that the mother has had notice of today’s proceedings.  I am satisfied that the time for her to file a response has expired.  There will therefore also be leave given to the father to proceed to a final hearing on an undefended basis on a date to be advised for the parties by the Registry in the week of 28 October 2013.  However I direct that the father give notice to the mother of these orders and of his intention to seek final relief on that occasion.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 27 August 2013.

Associate: 

Date:  05 November 2013