Poole and Tempest

[2013] FamCA 182

FAMILY COURT OF AUSTRALIA

POOLE & TEMPEST [2013] FamCA 182

FAMILY LAW – PRACTICE AND PROCEDURE – Orders and Directions that Independent Children’s Lawyer forward copies of the documents in these proceedings to the Child Protection Authorities

Family Law Act 1975 (Cth)

APPLICANT: Mr Poole

RESPONDENT: Ms Tempest

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: CSC 708 of 2011

DATE DELIVERED: 25 February 2013

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Benjamin J

HEARING DATE:

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lehmann

SOLICITOR FOR THE APPLICANT: Lehmann Featherstone

COUNSEL FOR THE RESPONDENT: Mr K A Cuthbertson

SOLICITOR FOR THE RESPONDENT: Cuthberston & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms S Gray

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Susan Gray

Orders

1. The Independent Children’s Lawyer forward to the State Child Protection Authorities the following:-

   (a)

   copies of the orders made in this court and the Federal Magistrates Court on 17 November 2011, 1 December 2011, 22 February 2012, 25 July 2012,

   
   

   12 September 2012 and 5 December 2012 and this order of today’s date;

   (b)a copy of the affidavit and report of Ms A forwarded 29 November 2012;

   (c)

   a copy of the transcript of proceedings on sentence of Ms Tempest on

   
   

   … April 2012;

   (d)a copy of the application filed in the Federal Magistrates Court by the father on 15 November 2011;

   (e)a copy of the affidavit in support by the father filed 15 November 2011;

   (f)a copy of the affidavit of Ms B filed 17 November 2011;

   (g)a copy of the affidavit of Mr Poole filed 20 December 2011;

   (h)a copy of the affidavit of Ms C & Mr D filed 5 March 2011;

   (i)a copy of the response filed by the mother filed 1 August 2012;

   (j)a copy of the affidavit of mother filed 1 August 2012;

   (k)a copy of the affidavit of Mr Poole filed 24 October 2012; and

   (l)a copy of the affidavit of mother filed 30 December 2012.

   IT IS REQUESTED

2. The State of Queensland Child Protection Authorities take such steps as is within their powers to protect this child AND IT IS NOTED the state of Queensland Child Protection Authorities have declined to participate in these proceedings.

   IT IS DIRECTED

3. A copy of the reasons for these orders be forwarded to the Independent Children’s Lawyer for further on-forwarding to the Child Protection Authorities.

   IT IS FURTHER ORDERED

4. All outstanding applications be dismissed.

5. The appointment of the Independent Children’s Lawyer be terminated.

   IT IS CERTIFIED

6. 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 by this Court under the pseudonym Poole & Tempest 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 CAIRNS

FILE NUMBER: CSC 708 of 2011

Mr Poole

Applicant

And

Ms Tempest

Respondent

REASONS FOR JUDGMENT

1. These are proceedings between Mr Poole, the applicant father, and Ms Tempest, the respondent mother, in relation to their son, J, born in April 2009, whom I note will soon turn four.  These proceedings commenced in November 2011 in the Federal Magistrates Court in circumstances where the father had raised serious concerns about the mother’s behaviour with other men and also in relation to the mother’s criminal history and in relation to drug offences.  There was evidence supplied in support of that application by Ms B and the paternal grandparents.

2. The mother filed a response about a year later, in August 2012.  In that, she raised serious questions about the father and his behaviour.  The father denied many of those.  In November 2012, Ms A, a social worker, filed an affidavit with a report in relation to the parties.  That report raises a number of serious issues about the parents’ ability to parent the child.  She said, and I quote, at paragraph 67 onwards:-

   67.The parents’ presentation during the report, as well as their inconsistent behaviour, does not bode well for either parent’s future rehabilitation or their capacity to parent the child appropriately in the future.  Their antisocial attitudes and behaviours contradict the efficacy of treatment outcomes.  Their unpaid fines and breaches of their probation are a further significant indicator of their inability or unwillingness to take personal responsibility and bear the consequences for their actions and thereby make a fresh start.  Whilst they both work and have a capacity to pay, they continue to ignore their obligations and accumulate debts and fines which go unpaid.

   68.While both parents love the child dearly, I have no doubt about this, it is not enough.  Without them taking full responsibility for their behaviour and honestly working on a long term rehabilitation with skilled professionals, then both are at serious risk of re-offending.  The prognosis for the child in these circumstances is poor.

   69.Both parents need to break free from their old network completely and establish a clean and sober lifestyle for the sake of the child.  Both are at risk of losing the child permanently.

   70.      It is quite simply a case of choice for the parents.

   71.It’s hoped at least one, preferably both, can make the necessary changes for [J’s] sake.

3. Ms A makes some comments in relation to the grandparents and goes on to make some recommendations.  Sadly, it is not the responsibility of this Court to take on the role of a child protection authority.  That is, under our federal system, a matter for State Governments.  I have discussed this and made comment about this in previous judgments and I am troubled by it.

4. All I can reasonably do in this circumstance is forward all of these documents to the child protection authorities in the State of Queensland, point out the real risk to this child, which Ms A has alluded to, and urge them to take action under the broad powers they have under the child protection legislation in this State, and I intend to do so and I will request that the Independent Children’s Lawyer voice as strongly as possible in a letter to the Child Protection Authorities the concerns that this Court has for this child. 

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 25 February 2013.

Associate      

Date:              25 February 2013