Parr and Buck

[2013] FamCA 601

FAMILY COURT OF AUSTRALIA

PARR & BUCK [2013] FamCA 601

FAMILY LAW – CHILDREN – With whom the child spend time – Where the child was removed from the Mother’s care by the Department of Communities, Child Safety and Disability Services – Where the child has been living with the Father since July 2011 – Where the Mother has spent three supervised visits with the child since July 2011 – Where the Mother failed to participate in the proceedings

Family Law Act 1975 (Cth)

Allesch v Maunz Allesch v Maunz (2000) 26 Fam LR 237

APPLICANT: Mr Parr

RESPONDENT: Ms Buck

INDEPENDENT CHILDREN’S LAWYER: Mr Dooley

FILE NUMBER: BRC 4131 of 2008

DATE DELIVERED: 15 August 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent

HEARING DATE: 15 August 2013

REPRESENTATION

FOR THE APPLICANT: In person

FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Dooley Solicitors

Orders

IT IS ORDERED

1. That all previous Orders be discharged.

2. That the Father Mr Parr have sole parental responsibility for the child B born … 2005.

3. That the child live with the Father.

4. That the Mother Ms Buck spend time with and communicate with the child on such conditions as may be agreed between the Mother and the Father.

5. That the Independent Children’s Lawyer be discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Parr & Buck 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 4131 of 2008

Mr Parr

Applicant

And

Ms Buck

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This Application concerns B, born in 2005, now eight years of age. 

2. The Applicant Father, Mr Parr (“the Father”), is 37 years of age, having been born in 1976.  He is self-employed as a tradesman. 

3. The Father and the Respondent Mother, Ms Buck (“the Mother”), married in September 2006 and separated in May 2007.  B is the only child of that relationship.

4. B lived with the Mother following separation, and spent more or less fortnightly weekends with the Father.  In September 2009, final parenting orders were made by consent for the child to live with the Mother for eight nights each fortnight, and with the Father for six nights each fortnight, and that the parties have equal shared parental responsibility.

5. In July 2011, as a consequence of an episode of domestic violence between the Mother and her then partner, Mr C, whilst the child was in the care of the Mother, the child was taken into the care of the Department of Communities, Child Safety and Disability Services (“the Department”), and thereafter placed into the Father’s care.  Shortly thereafter, on 11 August 2011, interim orders were made in the Children’s Court that the child reside with the father and have supervised contact with the Mother.  On 24 May 2012, the Department withdrew their application, and the matter was transferred to the Family Court. 

6. Thus it is that the child is currently residing with the Father, and has done so since he was removed from the Mother’s care in July 2011 by the Department.  The evidence indicates that since the child was removed from the Mother’s care, the child has had some three visits with the Mother, supervised by the Department, as is recorded in the Family Report of Ms D, family consultant, filed 16 October 2012. 

7. Pursuant to the Father’s Initiating Application filed 15 March 2012, the Father seeks final orders, including that he have sole parental responsibility for the child; that the child live with the Father; that the Mother contact with the child through the Department; and that upon approval from the Department, the child spend time with the Mother at such times as are agreed from time to time. 

8. However, as Ms D noted during the family report interviews in September 2012, at that stage the Father was seeking that the child live with him and spend alternate weekends with the Mother. 

9. On 4 December 2012, the Father filed an Application in a Case seeking orders regarding the issue of a passport for the child, and a further order that the Mother not be permitted to travel overseas with the child unless an order is obtained by the Court. 

10. The child’s interests in the proceedings are represented by Mr Dooley, who is the Independent Children's Lawyer appointed for that purpose pursuant to the Family Law Act 1975 (Cth) (“the Act”). The orders sought today by the Independent Children's Lawyer, and supported by the Father, include an order that the Father have sole parental responsibility for the child, and for him to live with the Father, and that the Mother spend time with and communicate with the child on such conditions as may be agreed between the Mother and the Father.

11. It is clear on the history of these proceedings that the Mother has been afforded the opportunity to be heard on the orders that are now sought.[1]  I record that, at a compliance hearing before Registrar Stoneham on 16 November 2012, the Mother informed the Court that she was withdrawing from further participation in these proceedings.  Since then, the Mother has failed to appear at a further mention on 8 March 2013.  The Mother purported to file a notice of discontinuance on 3 December 2012, although that notice was not in proper form. 

    [1] Allesch v Maunz Allesch v Maunz (2000) 26 Fam LR 237 per Kirby J.

12. The affidavit of the Independent Children's Lawyer filed on 20 June 2013 raises issues concerning the Mother’s refusal to undergo any psychiatric assessment in circumstances where the Department had raised issues concerning the stability of the Mother’s mental health. 

13. I am satisfied that the Mother has chosen not to address the issues thus raised, and that is fundamental, obviously, to best interests considerations as set out in s 60CC of the Act.

14. I am satisfied, by reference to the contents of the evidence, including the family report, that the presumption in section 61DA of the Act does not apply, and I am satisfied pursuant to the s 60CC considerations that the orders now sought by the Independent Children's Lawyer and the Father are orders which best meet the best interests of the child, and I therefore make those orders.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 15 August 2013.

Associate:

Date:  16 August 2013