Oscar and Delware

[2011] FamCA 744

FAMILY COURT OF AUSTRALIA

OSCAR & DELWARE [2011] FamCA 744

FAMILY LAW – CHILDREN – Interim Orders – with whom a child spends time – father’s interim application to spend time with child dismissed

FAMILY LAW – CHILDREN – Orders by Consent – parties to provide one another with residential addresses and telephone numbers in respect of the child

FAMILY LAW – PRACTICE AND PROCEDURE – Procedural Orders – matter adjourned for completion of final hearing

Family Law Act 1975 (Cth)

APPLICANT: Mr Oscar

RESPONDENT: Ms Delware

FILE NUMBER: BRC 4067 of 2009

DATE DELIVERED: 29 August 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Benjamin J

HEARING DATE: 29 August 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Barataraj

SOLICITOR FOR THE APPLICANT: Applicant in person

COUNSEL FOR THE RESPONDENT: Mr Hanlon & Ms Chekirova

SOLICITOR FOR THE RESPONDENT:

P L Corby & Co

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER

Ms McMillan S.C. and Mr Thiele

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER

Rimmer Lawyers

Orders

1. BY CONSENT Orders be made in accordance with the minute of order initialled by me, marked “Minute of Orders re: Delware” and dated today’s date, an engrossed copy attached hereto and marked Exhibit “1”.

   BY DETERMINATION

2. The interim application made by the father for interim parenting orders be dismissed.

   IT IS DIRECTED

3. A copy of the reasons for these orders be taken out and placed on the court file.

   UNTIL FURTHER ORDER

4. BY CONSENT each party provide the other with the address and telephone number of the place of residence of each of the children.

5. These proceedings be adjourned for completion of hearing for five days commencing Monday 16 January 2012 at Brisbane.

6. The parties and the Independent Children’s Lawyer be given leave to have the matter restored before me on the giving of two (2) days notice and leave be given to the parties to appear at any such mention by telephone.

   IT IS NOTED

7. This matter is being heard conjointly with Oscar & Austen (BRC4069/2009) which is a significant cost saving to the parties and to the offices of the Legal Aid Commission.

8. There are significant complex issues of fact and law involved in this matter including allegations of sexual and physical abuse and neglect and allegations of evidence being tampered with and colluding in relation to the evidence AND THE COURT REQUESTS the Legal Aid Commission consider extending the cap in these proceedings to enable the parties to be properly and adequately represented.

   IT IS FURTHER ORDERED

9. Leave be given for the legal representatives of Ms Delware to take instructions from her and prepare documents as if she were not under cross-examination.

   IT IS FURTHER DIRECTED

10. In relation to the material provided on email, Ms Delware and Ms Austen file and serve any further affidavits they wish to rely upon in that regard on or before 5.00pm Wednesday 12 October 2011 and the father file and serve any material he has in reply on or before 4.00pm Friday 4 November 2011.

    IT IS FURTHER ORDERED

11. Leave be given for the Independent Children’s Lawyer to provide copies of those affidavits to the family consultant and, on the giving of fourteen (14) days notice to the other party, provide copies of those affidavits to the psychiatrist.

    IT IS CERTIFIED

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

IT IS NOTED that publication of this judgment under the pseudonym Oscar v Delware 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 BRISBANE

FILE NUMBER: BRC 4067 of 2009

Mr Oscar

Applicant

And

Ms Delware

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. In the proceedings between Mr Oscar (“the father”) and Ms Delware (“the mother”), there is an interim application before me by the father seeking an order that B, who was born in July 2009 and is now aged just over three, spend unsupervised time with him from 9.00 am to 5.00 pm and that there be shared parenting rights, which I take to be shared parental responsibility, and that the place of collection be a police station nearest to the father and that to give effect those orders, the mother relocate to the N Region within two weeks of the date of the order.  He also seeks an order that each of the parties provide the other with their telephone numbers and addresses.

2. In terms of the mother, she opposes all of those orders, and the Independent Children’s Lawyer submits that there ought not to be any change to the current arrangements.  This matter is in day six of a hearing in which evidence has been given by the father and he has been cross-examined in relation to that evidence.  Of course, I have not and do not make any findings in respect of that evidence at this stage.  I will have to wait until the conclusion of all of the evidence and submissions to make any such findings.  The mother has given her evidence-in-chief but the cross-examination of her has not been completed.

3. On Thursday afternoon, she was asked some questions as to whether there was collusion between herself and Ms  Austen (which are proceeding being held at the same time in respect of another child).  The mother first of all said that she would not be bullied by Ms  Austen, and this is, as I understand, set out in a diary, and that her evidence has not been fabricated or colluded.  On the following day, that is, Friday, 26 August 2011, a great deal of material was provided, which is set out, at least in draft form, in a document provided to me, although it has no evidentiary status at this time, and I do not know the full nature of those documents and what the conversations were, and nobody has been cross-examined in it.  Clearly, from the point of view of the father, he says that this evidence has the capacity to wholly or partly impeach the evidence of one or both of the mothers.  Whether that comes to pass will be a matter on the conclusion of the trial. 

4. The mother sets out a series of issues in respect of the father’s behaviour with the child and his behaviour to her (the mother) from the 12 months prior to separation in about February 2009.  These include anger, violence, pushing, placing a pillow over the mother’s head, inserting a cherry into her anus, throwing a wooden chair at the mother and exploding without reason.  I will not go through all of that in details, but they are, if established or if a finding is made, troubling behaviour of a controlling and abusive kind.  The father has denied those matters, but they are severely troubling.

5. The family consultant does not recommend any interim time between the father and the child, and the Independent Children’s Lawyer has taken me to her initial Family Report in respect of the child filed on the 16 June 2010, in particular paragraph 41, where she sets out the distress of the child in simply coming into the father’s company, let alone spending significant unsupervised time with him. 

6. The father has engaged in litigation in the Federal Courts with regard to his immigration status, which could mean that he could be deported some time later this year at the earliest.  This child the child has not seen the father since July 2008, and it appears that there may be some issues as to paternity. 

7. The father’s submissions are that jobs are limited in Tasmania, and I am not sure that there is any evidence to that end, but his evidence given during the course of the hearing was that he has earned very little income throughout the time since the birth of the child such to the extent that he has not been able to provide any money towards her care over that period of over three years.  I do not know and cannot comment on the relative job availability in the various states, and if that becomes an issue, no doubt proper evidence will be put before me in due course.

8. There is no meaningful relationship between the child and the father, and if the evidence falls that way and the father is successful, there would need to be a build up of time between the father and the child over a period of time to enable a relationship to be put in place.  I have not made findings in relation to risk.  However, if the mother is successful in some or all aspects of her case, then there may well be a future risk to this child in circumstances where there is no ongoing time.  The child is too young to express any views, although I am conscious of the response set out in the Family Report of last year. 

9. So far there have been no complaints about the mother’s care of the child except to the extent that she won’t permit a relationship between the father and the child.  That issue is, of course, the subject of the primary proceedings.  The mother is not willing to facilitate a relationship between the child and the father.  Again, whether that is a soundly based approach or a perverse or other approach will be a matter for ultimate determination. 

10. The effect of the orders sought by the father, that is, that the mother relocate back to Queensland, may have some significant impacts on her.  The father’s case is that he has no money to assist her in that process, and his evidence is that he has not paid any child support for the child.  I do not know whether the mother is financially, physically or in any other ways able to return to South-East Queensland.  There is no evidence as to the practical difficulty and expense of that or of the child spending time with the father.  There is no issue as to the capacity of the mother to care for the child.  There are significant issues, bearing the evidence so far, as to the capacity of the father to care for the child. 

11. The question of the parent’s attitude to the child and responsibilities of parenthood clearly remains in issue, and there are allegations of family violence, and family violence orders have been made. 

12. I have had regard to the extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent, having regard to the untested nature of the evidence and the conflicts which I have yet to determine, and I have also had regard to the ability of each and the willingness of each parent to fulfil their obligations to maintain the child. 

13. Firstly, I must consider whether this is a matter where there ought to be equal shared parental responsibility.  Having regard to the significant issues raised by the mother and in particular, the provisions of s 61DA (2), which says that the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse or family violence.  Without making a finding, there are at the present time reasonable grounds to believe that a parent may have engaged in that sort of conduct.  Accordingly, I have not made such a finding, but simply note there are reasonable grounds.  So you might need to clarify that with your client to let him know that I am not making a positive finding or a negative finding.  So the presumption does not apply.  The child has been in the care of the mother since her birth and primarily and solely in her care since February 2009.  It seems to me that this is not a case where there ought to be an order for equal shared parental responsibility, having regard to the factors I’ve elicited earlier under section 60CC and the provisions of the so-called presumption.

14. In terms of time between the father and the child, I anticipate this matter will be completed in January or February of next year.  I am not satisfied in light if the current facts and circumstances that that would not be appropriate in this case to put the child and the mother to the trouble and expense of bringing a child from Tasmania to Queensland.  Accordingly, having regard to all of the factors I have referred to earlier, I do not intend to make an order requiring the mother to return to Queensland.  There is also a question as to whether I can make such an order, and I have not gone into that at this stage, but there is an extraordinarily lot of law in regard to that, and it may well be that that is beyond what this Court can do or in the circumstances, should do.

15. In relation to the question as to the time between the child and the father I am concerned about the issues raised by the family consultant, as I am concerned about all of the evidence at this time.  The child has not seen her father for over two and a half years.  I see no urgency in restoring that relationship at this stage until I know precisely what the evidence is and I have made findings in respect of that evidence. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 29 August 2011.

Associate:     

Date:              29 August 2011