Park & Anor and Wilson

[2011] FamCA 900

FAMILY COURT OF AUSTRALIA

PARK AND ANOR & WILSON [2011] FamCA 900

FAMILY LAW – CHILDREN – Application by mother that child live with the second applicant in the interim – Interim Orders made that child live with the second applicant – Interim Orders made that mother and the second applicant each have parental responsibility for the child and that the second applicant consult the mother in the exercise of her parental responsibility for the child – Injunctive Orders

FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of Independent Children’s Lawyer – Request that Secretary of the Department of Human Services intervene in proceedings – Application adjourned to a fixed date for mention

Family Law Act 1975 (Cth)

1st APPLICANT: Ms Park

2nd APPLICANT: Ms Shaw

RESPONDENT: Mr Wilson

FILE NUMBER: HBC 888 of 2011

DATE DELIVERED: 8 November 2011

PLACE DELIVERED: Launceston

PLACE HEARD:

JUDGMENT OF: Benjamin J

HEARING DATE:

REPRESENTATION

COUNSEL FOR THE 1ST APPLICANT: Mr Fitzgerald

SOLICITOR FOR THE 1ST APPLICANT: Legal Aid Commission

COUNSEL FOR THE 2ND APPLICANT: In person

SOLICITOR FOR THE 2ND APPLICANT: In person

COUNSEL FOR THE RESPONDENT:	No appearance
SOLICITOR FOR THE RESPONDENT:

Orders

UNTIL FURTHER ORDER

1. While the mother is in goal, Ms Park (“the mother”) and Ms Shaw (“the second applicant”) each have parental responsibility of the child B Park born … 2006 (“the child”) and that should Ms Shaw exercise parental responsibility for the child she must consult the mother and give advance notice if possible. 

2. While the mother is in goal the child live with Ms Shaw, otherwise the child live with the mother.

3. Mr Wilson (“the father”) be restrained from entering in the place of residence where the child lives from time to time (including C Street, D Town) and the child’s place of education (being E School) at F Street, G Town and the father be restrained from in any way approaching, taking or caring for the child pending further order of this court or agreement in writing between the mother and the father.

4. 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.

5. The interests, in these proceedings, of the child B born … 2006 (“the child”), be independently represented by a lawyer and it is requested that Legal Aid Commission Tasmania arrange an Independent Children’s Lawyer, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia at Hobart.

6. Forthwith upon appointment by the said Legal Aid Commission of Tasmania or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

7. Within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

   IT IS REQUESTED

8. Pursuant to s91B of the Family Law Act 1975 the Secretary of the Department of Human Services Tasmania intervene in these proceedings AND IT IS DIRECTED the solicitor for the mother forward to the Department:-

   (a)    a copy of this order;

   (b)    the two affidavits in support of the application; and

   (c)    the application

   within forty eight (48) hours of the date of this order.

   IT IS FURTHER ORDERED

9. Leave was given for this interim application to be heard on an ex parte basis.

10. These proceedings be adjourned for mention before me at 4.00pm on Wednesday

    
    

    7 December 2011 at Hobart.

11. Leave be given for the parties to attend by telephone by dialling 1800 500 536 *814549*.

12. Leave be given to the father to have the matter urgently listed before me or before this Court on the giving of seven (7) days notice.

    THE COURT DECLARES

13. The presumption under s61DA(2) or (3) of the Family Law Act does not, at this stage, apply.

    IT IS FURTHER DIRECTED

14. A copy of this order, the two affidavits and the application be served upon the father within seven (7) days from the date of this order, at his last known address and an affidavit of service be filed prior to the next return date.

15. A copy of the evidence of Ms Shaw be taken out and placed on the court file.

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

    IT IS CERTIFIED

17. 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 under the pseudonym Park and Anor & Wilson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA  AT LAUNCESTON

FILE NUMBER: HBC 888 of 2011

Ms Park and Ms Shaw

Applicants

And

Mr Wilson

Respondent

REASONS FOR JUDGMENT

1. This is an application for parental orders for the B, born in 2006, who is now aged five.  The application was initially made by her mother, Ms Park (“the mother”), and the father, Mr Wilson (“the father”), has not been served nor given notice of these proceedings.  Another party has been joined to the proceedings, Ms Shaw, who appeared by telephone today and gave evidence over the telephone. 

2. This matter has a complex background which is set out in the mother’s affidavit, and I make no formal findings, but I note the background for the purpose of today’s application.  The mother is aged 29 years and is currently an inmate at H Prison.  The father is aged 32 years, and Ms Shaw, the second applicant, is aged 36 years.

3. The mother’s evidence is that she and the father had a short-term relationship which ended prior to their child, the child, being born, the child, as I said, being aged about five.  The mother says that prior to June 2011 the father was having regular but at times intermittent time with the child and that the mother was the primary carer.  The mother sets out a serious allegation of sexual abuse which was raised in June 2011 and says that since that time, the father has spent no time with the child except on one occasion where the father and his present girlfriend came to the mother’s house and delivered a present.  There have been no findings in relation to that allegation of sexual abuse, and it appears that but for subsequent events, there were no proceedings on foot by either the mother or father in terms of that application of that issue. 

4. In November 2010, the mother was charged with death by dangerous driving.  She was convicted of that offence on 27 October 2011 after a trial in the Supreme Court of Tasmania.  The mother was charged with that serious offence, and it appeared from the sentencing notes of Evans J that she had driven in a temper and in a very negligent way along a road and struck a person who was in his driveway.  That person died as a result of those injuries.  His Honour observed of the defendant (the mother) that she was 29 years of age, she had two children, she is cohabiting with another person, was pregnant to him and that she had a history of being in state care.  He describes her childhood as being horrific and that she suffers from a chronic post-traumatic stress disorder with anxiety in the moderate range.  Her only prior convictions were for exceeding the speed limit, and his Honour observed that it did her credit as does the fact that she has striven to provide a home for her two children, as to her criminal history and that she’s remorseful.  His Honour concluded that the sentence should be short and then imprisoned her for six months and did not suspend her sentence.

5. The child has been in the care of her mother, on this evidence, the whole of her life.  The mother asked that the matter be dealt with without notice, as there was a serious allegation that the father had sexually abused the child and that the father had attended the school and attempted to remove the child.  There is some evidence from Ms Shaw that there was an attempt to remove the child from Ms Shaw.  Ms Shaw has known the child all of her life and has given evidence that she has no criminal history and that she is well able to care for the child, including taking the child to visit the mother in H Prison.  I have had regard to the material in Ms Shaw’s affidavit.

6. This child is no doubt traumatised or worse by her mother’s imprisonment, and that is at some level supported by the evidence of Ms Shaw.  It would, in the circumstance of this allegation, be troubling, to say the least, for the child to be left in the unsupervised care of the father, against whom there is a serious allegation.  It appears, although it is not confirmed, that the Department of Health and Human Services have been involved, and they do not object to the course that the mother and Ms Shaw seek, although I intend to have a notice served upon them so that they can, if they choose, intervene in these proceedings. 

7. My task is to do a number of things.  The first is to consider the factors under section 60CC even on an interim matter such as this.  I have an obligation to ensure that the child maintains a meaningful relationship with both of her parents, provided it is safe to do so.  The arrangements proposed by the mother and by Ms Shaw will meet that need, as Ms Shaw is proposing to take the child to visit the mother and enables the child to have telephone communication with her.

8. In terms of the father, on the evidence before me, it appears that he has not spent time with the child except on one occasion and then very briefly on the child’s birthday, although that is yet to be tested.  The evidence of Ms Shaw and the mother is that the child will be cared for adequately in Ms Shaw’s supervision and whilst the mother is incarcerated, that Ms Shaw is sensitive to the needs of the child and is able to provide that for her and so that the welfare of the child, albeit in difficult circumstances, can be preserved and looked after.  To put the child in the unsupervised care of the father, having regard to the serious allegations made without those allegations having been tested or without any further information, would, in my view, expose the child to a possible risk of abuse or otherwise.  I do not have the child’s views before me, and I intend to seek the appointment of an independent children’s lawyer. 

9. On the mother’s evidence, which is, as I said, untested, the child has been in her care and will return to her care after six months and in the meantime will be in Ms Shaw’s care, with whom the child has a good relationship.  Ms Shaw will promote the relationship between the child and the mother, but I am not sure that she will promote the relationship between the child and the father in the circumstances.  If the mother is correct, that is understandable, although that is open for further argument in this Court. 

10. The child will continue going to the same school, and her life, whilst it will be changed over the next six months, will be managed in a sensible way in these arrangements subject to any application the father may make.  There is no practical difficulty in that occurring, and it seems that Ms Shaw and the mother by this application are focused on the needs of this child at this time.  There are no family violence orders in place, although it is likely if the father persists in the absence of proceedings in this Court or the Federal Magistrates Court for parenting and persists to try and seize the child, it may well be that the state authorities may become involved.  Whatever order I make, I need to give the father procedural fairness.

11. I intend to list this matter before me in Hobart on the Wednesday the 7 December at 4 pm to enable the father, if he wishes, to argue this question.  This is not a matter where the presumption under the legislation ought to apply, having regard to the serious allegation of abuse that was made and having regard to the information before me.  I do intend, however, to make an order that Ms Shaw has parental responsibility in a parallel manner so that she can get on with the business of caring for this child whilst the mother is incarcerated.  I will require Ms Shaw to provide the mother with any details, preferably in advance, if that is feasible, in respect of the exercise of that parental responsibility.

12. All of these orders will be subject to any application that the father may make, bearing in mind the leave I will give him in this respect.  I have had regard to all of the circumstances contained in the two affidavits, and as I have said, I do not make any positive findings of fact at this time. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 8 November 2011.

Associate: 

Date:              8 November 2011