Plaskett and Plaskett

[2016] FamCA 30

FAMILY COURT OF AUSTRALIA

PLASKETT & PLASKETT [2016] FamCA 30

FAMILY LAW – CHILDREN – Enforcement – Where the father seeks orders to facilitate travel with the children – Where the mother seeks orders that the father’s time with the children be suspended – Where the father’s brother has been the subject of criminal proceedings – Where there was no disclosure about proceedings against the father’s brother prior to the conclusion of the substantive parenting proceedings in 2013 – Where an order against the father for a DNA sample in relation to the proceedings against the brother had been granted and appealed by the father to the Supreme Court – Where there is enough concern not to enforce the orders – Orders made that the father’s application in a case is dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Plaskett

RESPONDENT: Ms Plaskett

FILE NUMBER: SYC 2954 of 2010

DATE DELIVERED: 13 January 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 13 January 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Paul of Mills Oakley Lawyers

COUNSEL FOR THE RESPONDENT: Ms Mahony

SOLICITOR FOR THE RESPONDENT: Rowlandson & Co

Orders

1. The Application in a Case filed on 7 January 2016 be dismissed.

1. The Court notes that the mother proposes to file an Initiating Application within seven days’ from today’s date.

1. The question of costs of and incidental to the proceedings today are reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Plaskett & Plaskett 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 SYDNEY

FILE NUMBER:  SYC 2954 of 2010

Mr Plaskett

Applicant

And

Ms Plaskett

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to two children, K and L.  They were born in 2002 and in 2007 and so are 13 and eight years of age respectively.  They were the subject of final orders made on 20 December 2013 following a hearing.  Pursuant to those orders the parents have equal shared parental responsibility, the children live with the mother except when they are with the father, that they be with the father for alternate weekends, Thursdays overnight, half school holidays and provision was made for special days. 

2. The orders relevantly provided that in the event that either parent intended to take the children overseas that they give the other two months’ prior written notice, including itineraries and other things.  Relevantly, there was an order that the children were not to be brought into contact with the father’s brother, John whereby he would be alone with them. 

3. The father wrote to the mother - it might have been through solicitors – on 20 August 2015 proposing for some dates for the Christmas school holidays, that the children be with him from 13 to 25 January for the purposes of overseas travel between 14 and 24 January.  On 7 December 2015, the mother wrote back agreeing to the dates. 

4. An application was filed by the father on 7 January 2016 seeking to facilitate that travel.  He sought that the mother forthwith deliver the children to the father, that she provide the children’s passports to the father, that the father have permission under a provision of the legislation to remove the children from Australia, that he return the children at the end of the trip on 25 January, and orders about costs.  That application was first returnable on 8 January 2016 and it was adjourned to today’s date.

5. The mother has filed a response to the application in a case and she seeks that the parenting orders be suspended.  I think she means that the orders providing for the father’s time be suspended.  She seeks that the children live with her pending further order, and she seeks that the father’s application be dismissed. 

6. There has been mention in submissions about unacceptable risk and various other things.  There is no threshold requirement for any particular finding in relation to that.  Enforcement is discretionary as a general proposition, but in relation to parenting proceedings enforcement is a matter whereby the discretion would be substantially exercised on the basis of the best interests of the children. 

7. The circumstances are remarkable.  There was an assault on a 13 year old girl in 1994.  That was after the parties had met and commenced to live together but before they had married.  In 2013, the father’s twin brother was charged with that assault.  I think the victim of assault died in between times, and it appears that the suggestion is that as part of a cold case inquiry, action was taken by the police.

8. It seems to be an agreed fact that DNA evidence matches the father’s brother to the crime.  There is reference in the evidence to a sample taken from the victim and the evidence is that while on remand in relation to another matter, the father’s brother gave a DNA sample in 2004. 

9. There is evidence that attempts were made by the police in 2013 to obtain a DNA sample from the father.  An application for testing against him was dismissed in May 2014.  In June 2015, the trial against the father’s brother was aborted.

10. An order against the father for a DNA sample was again granted on 17 December 2015.  The father has appealed that order to the Supreme Court and that matter is listed for mention next month.  The children have become aware of the issue.  The mother says that the older child was told by the father that if the police were successful in obtaining a DNA sample from him or something to that effect, he could or would go to gaol.  The mother says that the older child has told her the father was seen, in effect, having a panic attack around 13 December 2015, bent over a toilet, and that he could not go out to do whatever they were going to do that day.

11. The mother says that, perhaps through solicitors, she requested further particulars of the events, where the proceedings are up to and what is happening on 18 December 2015 and she says, without complaint, that there was no response to that correspondence.  There is no evidence before me that there was any response to that correspondence.  The mother’s case is that the children have become very upset and in circumstances where there was no disclosure about the proceedings against the father’s brother prior to the conclusion of the substantive proceedings at the end of 2013, in circumstances where the father’s brother was a relevant issue in those proceedings, where there was no response to her enquiries on 18 December 2015, and where it is beyond doubt that, not through her, the children have become aware of the issues arising for the father; they should spend time with the father.

12. Now, as a technical matter the children cannot go overseas without the mother’s consent or an order of the Court and neither has been provided.  The mother did consent but she has changed her mind.  There is no issue about that.  She does not consent today.  It is an offence carrying a penalty of up to three years gaol to take a child out of the country where there are orders in place, unless there is written consent to travel or an order.  The 2013 orders are ambiguous, but they do not permit travel.  They just make a provision for notice.

13. If the travel is to happen, the Court would have to make a positive order today for that to happen.  As I have discussed with Ms Mahoney on behalf of the mother, she has sought orders in her Response to the Application in a Case that she cannot have in the absence of substantive parenting proceedings.  The mother intends to start proceedings to seek a suspension of the substantive orders insofar as they relate to the father and she is going to do that within seven days.  The form of recovery order sought by the father is not one that authorises the police to recover the children.  He just seeks that the mother provide them to him.  I take it therefore that he is sensitive to the fact that the children are of a certain age and it would be undesirable to involve the authorities.

14. There may be an explanation for all of this, and one could speculate about it.  One could understand a circumstance whereby the father might be advised to take a certain course in relation to the police application for a sample for DNA testing.  On one view, all these issues would have been resolved if he had agreed to provide a sample.  If that would exclude him, then the whole thing would be over and could have been over years ago.  But, as I say, one could understand why he might be advised not to do that and I cannot make any inference at all against him in relation to that. 

15. However, that is no fault of the mother and it is nothing to do with the children.  It is what it is.  It is not for me to make any assumptions about that or to be critical of him.  The father has provided a chronology in these proceedings that asserts as a matter of fact that his brother committed the assault.  I do not know what the strength of that is.  Perhaps he makes that claim on the basis that he is aware of the DNA evidence, he knows that he was not guilty of the crime, so it follows then that his brother was guilty.  I do not know.  There is some reference to him being subpoenaed as a witness in the aborted trial.  I do not know whether he actually was called to give evidence or not.  I simply do not know.

16. The father has been a bit coy about his involvement with the police.  He has asserted that he was not a person of interest or a suspect in relation to the criminal proceedings.  There are some documents before the Court that suggest that might not be the case.  One could understand how this controversy might come about.  There is DNA evidence.  If the father’s brother says he did not commit the crime, and that is one of the main planks of his defence, then by inference, in the event that his DNA was the same as that of his brother, he is implicating the father.  Again, you can understand that he might be given advice to take a certain step.  And again that is logical and understandable but that is no fault of the mother. 

17. There is no explanation proffered to me as to why the father did not make a disclosure to Le Poer Trench J or to the mother before the date of the final orders, 20 December 2013, about the proceedings against his brother.  That is a serious matter.  There is an absolute obligation of disclosure in relation to proceedings.  The father’s brother was a relevant person in the parenting proceedings because orders were made about him and it was incumbent on the father to tell the Court.  There might be a reason for that.  As I say, I have not been told about it, but it is concerning. 

18. There is evidence that the children are upset.  The mother says that she had occasion to try and assist her daughter, who was without necessary toiletries on a particular day when she was with the father.  The mother went to the house.  The children or the older child told her that the house was locked and ultimately, the toiletries were thrown to an upstairs balcony.  The father has not had an opportunity to answer this but I understand through his solicitor that the children might have been misled or might have lied to the mother about the house being locked or that the mother might have lied about what she was told.  But there it is.  It would be objectively concerning if children of 13 and eight were locked in a house.  If the house caught fire, they would be dead, for example.  So there is an issue about that. 

19. The children have been upset beyond mere discomfort, the mother says.  There is already an indication from the words of the children that they feel some level of responsibility about this.  Mr Paul invited the Court to say something to the mother that might help her resume responsible parenting.  Well, that runs both ways.  I am not going to enforce these orders but I would invite the parents, in the cause of responsible parenting, in the words of Mr Paul, to say that in their joint view, the children should not go on the trip.  That would take pressure off the children.  That would mean that the children would not feel as though the cancellation of the cruise was caused by them. 

20. With respect, Mr Paul is right.  That would be a responsible thing for parents to do.  It would be hard but that is what is expected of responsible parents.  Children naturally think everything is their fault.  They can be very selfish and believe that everything in the world revolves around them.  So understandably in this sort of situation, they will feel guilty about this.  They will feel sad for their father, sad for their mother and sad for themselves and they will think it is all their fault.  It is not their fault. 

21. The fact is that unique circumstances have arisen.  They have interfered with an arrangement that the court put in place for the children.  We do not have automatic enforcement of parenting orders.  In the circumstances of this case, there is enough concern for the welfare of the children not to enforce the orders.  It is as simple as that.  That might cause cost.  It will no doubt cause sadness.  It will probably mean that the children will miss an opportunity.  Maybe that can be made up to them in the future.  But the greater good is they are alive and well.  They need to know that their mother and father love them more than anything.  And as I say, in the utopian world that Mr Paul described, the parents would say something to the children to take the pressure off them. 

22. If they can do that, well and good but sometimes the parents have struggled with that. 

23. The father is in a terrible position and one has great sympathy for him.  It is going to be a job of work for him to insulate the children from any distress.  It sounds like he has not been able to do that to date but that is what he needs to do.  He also needs to be more fulsome in keeping the mother informed about what is happening.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 13 January 2016.

Associate: 

Date:  29 January 2016