Miller and Butler

[2011] FamCA 627

FAMILY COURT OF AUSTRALIA

MILLER & BUTLER [2011] FamCA 627

FAMILY LAW – CHILDREN – Final orders – order for sole parental responsibility made in favour of the mother – order that child live with the mother – order that father have no contact with the child – restraining orders

Family Law Act1975 (Cth)

APPLICANT: Ms Miller

RESPONDENT: Mr Butler

FILE NUMBER: CSC 533 of 2008

DATE DELIVERED: 16 May 2011

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Benjamin J

HEARING DATE: 16 May 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Lehmann

SOLICITOR FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER

Mr Newman

Orders

IT IS ORDERED:-

1. Orders 1, 2, 3, 4, 5, 6, 7, 8 and 9 as per interim and final orders made 25 May 2010 be made with the exception that order 6 will read:-

   ‘The father be restrained from attending upon the child’s school for whatever reason’.

   noting there was a typographical error within the order.

2. 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.

3. This matter be removed from the list of cases requiring determination.

   IT IS DIRECTED

4. A transcript of the evidence given by the mother 16 May 2011 be taken out and placed on the court file.

5. The exhibits (card and letter from Queensland Police Service) be retained on the court file with the transcript of the mother’s evidence.

6. A copy of the reasons, given 16 May 2011, for these orders be taken out and placed on the court file.

   IT IS FURTHER ORDERED

7. The appointment of the Independent Children’s Lawyer be discharged twenty eight (28) days from the 16 May 2011.

8. Following two months after the date of this order IT IS DIRECTED all remaining exhibits be returned or if authorised by the producer of the documents be destroyed, all exhibits and documents to be returned or if authorised by the producer of the documents destroyed.

   IT IS CERTIFIED

9. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

   AND IT IS NOTED on 17 May 2011 the father was called at 10.00am and 11.00am and did not appear.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Miller & Butler has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 533 of 2008

Ms Miller

Applicant

And

Mr Butler

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Miller & Butler came before me on 25 May 2010, which is about a year ago, and it related to orders with regard to a child B, who is aged 10, almost 11.  When the matter came before me, I made interim orders which provided that the child live with the mother, the mother have sole parental responsibility, and I restrained the father from having contact with the child.  At the time I made those interim orders, the father was represented, I gave short reasons, and I stood the proceedings over to these sittings.  I note and reiterate the comments I made in my short reasons delivered in May 2010, and I note that there was no challenge to those orders, and they have remained in place. 

2. The mother gave evidence today that she was contacted by the child’s paternal grandmother earlier this year and arranged for the child to see the paternal grandmother.  It is clear on her evidence, and I note the evidence has not been the subject of cross-examination, that at that time, the child saw the father, notwithstanding the orders made by me in May of 2010.  There is a card which was given to the child by the father.  Now, it may be there is some explanation or some different view, although on the surface and without making a formal finding, it is a little troubling. 

3. The proceedings were returnable before the Court in these sittings, albeit there seems to be some issue as to whether it should be today or tomorrow, and any orders I make today I will suspend to ensure that the father has reasonable opportunity to attend tomorrow, and if he does not attend, then these orders will become final.

4. It seems to me that the orders are in place and they have been in place for some time, and that the criminal proceedings, notwithstanding some evidence given by the mother based on some information provided by the father to the mother, are still on foot.  I note from Exhibit 2 from Queensland Police that the criminal proceedings have been committed to a higher court and are, or at least were on 22 March 2011, subject to ongoing prosecution and that the Queensland Police were unaware when the matter was to be finalised.

5. Having regard to those circumstances, I intend to make the orders final orders but note that they were made ex parte, and I will also fix up a typographical error in the earlier orders.  I do not intend to formally make those orders until 10.30 tomorrow, but I do not anticipate that there will be a need for the representative of the mother or the Independent Children’s Lawyer or the mother herself to attend, and if the father does attend, then I will stand the matter over for later in the circuit to see where the matter goes to from there.

6. I have had regard to all of the circumstances and facts as I had when I made the interim orders and the material since at that time.  I repeat the factors under section 60CC which I alluded to in my reasons of 25 May 2010 and the serious concerns that I have in regard to the welfare of the child or the possibility of the child being exposed to abuse, violence or neglect, having regard to the allegations of the mother, albeit untested allegations, but in the absence of a defence from the father at this time.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 16 May 2011.

Associate:     

Date:              16 May 2011