Poppy and Leatherwood (No 2)

[2010] FamCA 436

FAMILY COURT OF AUSTRALIA

POPPY & LEATHERWOOD (NO. 2) [2010] FamCA 436

FAMILY LAW – CHILDREN – Where the father is currently incarcerated and has significant work to do before he is able to provide stable, ongoing responsibilities for the children – Where the mother and paternal grandmother are working together to develop a relationship between the children and paternal grandparents – Time between father and children to be supervised – Orders made as sought by the mother

Family Law Act 1975 (Cth)

APPLICANT: Ms Poppy

RESPONDENT: Mr Leatherwood

INDEPENDENT CHILDREN’S LAWYER: Mr Dooley

FILE NUMBER: BRC 7509 of 2007

DATE DELIVERED: 18 May 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 18 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Farr

SOLICITOR FOR THE APPLICANT: Burchill & Horsey Lawyers

RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Dooley of Dooley Solicitors

Orders

IT IS ORDERED THAT

1. The children S born … September 1999, P born … August 2000, and C born … March 2005, live with the mother.

2. The mother shall have sole parental responsibility for the children.

3. The children spend time and communicate with the father, subject to the availability of Y Contact Centre on the Sunshine Coast for such time as is available on a Sunday or such other weekend day as can be arranged with Y Contact Centre, not more than once every two months.

4. Each of the parties shall do all such things, sign all such documents and pay all such fees as are required to facilitate the commencement of time Y Contact Centre on the Sunshine Coast.

IT IS FURTHER ORDERED THAT

1. All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

2. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

3. The Independent Children's Lawyer be discharged.

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.

IT IS NOTED that publication of this judgment under the pseudonym Poppy & Leatherwood is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7509 of 2007

MS POPPY

Applicant

And

MR LEATHERWOOD

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 24 February 2010, I made orders, somewhat unusual in their form, that requested and directed the independent children’s lawyer in this case, Mr Dooley, to undertake a number of tasks, effectively, on behalf of the court. 

2. Those orders were made, primarily, as a result of the father’s effective illiteracy and included orders that the independent children’s lawyer explain the terms of the orders to the father and, further, to explain the terms of the orders to the father’s mother who, the evidence indicated, had already read earlier parts of the proceedings to her son.

3. I delivered ex tempore reasons on that day and those reasons should be seen as incorporated as part of the reasons for making the orders, which I make today. 

4. I do not propose, in these reasons, to repeat any of those matters but emphasise that each and all of the matters there referred to are important in ultimately arriving at a decision today to, firstly, make orders in the absence of the father and, secondly, make orders in accordance with those proposed by the mother, which are supported by the independent children’s lawyer. 

5. The father is currently incarcerated. It seems that the primary reason for his current incarceration is a breach of bail by him.  Mr Dooley has been informed by the father’s solicitor - who is dealing with those criminal matters - that the father intends pleading guilty in the Magistrate’s Court of Queensland, on 27 May 2010. 

6. There is some hope that the father will be released from custody on that occasion, given the period of time that he has been incarcerated, but there remains the possibility of him being required to serve further time in jail. 

7. As will be seen from the earlier orders and earlier reasons, a number of attempts have been made by the court to elicit, from the father, specific proposals with respect to co-parenting arrangements with the mother and to have him file documents as part of the court process so as to achieve that end.

8. Certainly, the second of those two requirements have not been met and, despite many orders and directions, no material has been filed by the father. 

9. Today, as a result of the intervention of the independent children’s lawyer in accordance with my earlier orders, Mr Dooley presents to the court a document received from the father - which I have marked as exhibit ICL1 in these proceedings. 

10. The document outlines, in what might be described as very general terms, a desire on the part of the father to have a meaningful relationship with the children.  He says, specifically:

    When I was a child, I developed a strong relationship with my father and I do not know what I would have done without him.  I also believe that the suggested visit every two months is not enough time to form any kind of meaningful relationship with my children.  I would need at least one visit every two weeks to form a relationship with my children.

11. There is no doubt that the court must mandatorily consider the benefit of a meaningful relationship between these children and their father. 

12. The court is pleased to hear that the mother has, effectively through her own actions, reinstituted a relationship between the children and their paternal grandparents.  The paternal grandmother appears today, in effect, on behalf of her son. 

13. I took the opportunity to ascertain, from the paternal grandmother, matters which I considered to be directly relevant to the best interests of the children and the father’s relationship with them, having regard to the statutory permissions and mandates set out in Division 12A of the Act.

14. The paternal grandmother indicates that she and the mother have a good working relationship and she and the mother are each hopeful that that relationship will continue to flourish so as to allow the children to spend time with the paternal grandparents.   It seems to me important that a relationship be developed between the children and the paternal grandparents, particularly in the circumstances of this case. That is all the more so where, as I outlined in my earlier reasons, the father experiences significant difficulties, exemplified not only by his present incarceration but also as outlined in some detail in a report prepared, at the independent children’s lawyer’s instigation, by Dr C, a consultant psychiatrist. 

15. The paternal grandmother is not a party to these proceedings and, after discussions with her, does not seek to become a party. Nor does she seek, therefore, to obtain formal parenting orders from the court. 

16. She considers it, as, it seems does the mother, appropriate that the informal arrangements currently existing between them continue.  I make it clear in these reasons, as I did during the course of the hearing, that the best arrangements for children are those that can be arrived at by agreement between those who are important to those children.  I sincerely hope that the mother and the paternal grandparents are able to continue their good relationship and to facilitate appropriate and meaningful time between the children and their grandparents.

17. For so long as the father is able to deal with the significant number of issues present in his life, there exists the possibility that that relationship between his parents and the mother might, at some time in the future, facilitate, or be the catalyst for, other co-parenting arrangements by agreement between all parties. 

18. At the present time, however, the matters referred to in some detail by me in my earlier reasons for judgment - not least of which, of course, are the matters raised in the comprehensive reports prepared by Dr C and the reporting family consultant, Mr F - persuade me that the father has a number of very significant issues that he needs to deal with on a day-to-day basis.

19. Unfortunately, those issues manifest themselves, at least to one degree or another, in what has plainly been an unreliable commitment to time with his children and concerns which, for the most part, I view as understandable on the part of the mother, with respect to their welfare whilst in his care. 

20. Those matters - which again I emphasise have been dealt with at some length in my earlier ex tempore reasons - provide the foundation for the somewhat restricted amount of time contained in the mooted orders proposed by the mother and also provide the foundation for the supervision of that time, as is also mooted in the orders. 

21. By reference to the matters detailed in my earlier reasons and, in particular, to the matters referred to at some length by Dr C and Mr F, it seems to me entirely appropriate, firstly, that the time between the children and their father be supervised and, secondly, that it occur with the relative infrequency mooted in those orders. 

22. The father has - as the paternal grandmother, with respect, quite appropriately acknowledged - much work to do before he is able to provide for his children the sort of stable ongoing responsibilities and commitment which they plainly need if he is to have a significant ongoing role in their lives that is of benefit to them. 

23. It is to be hoped that he is able to do that work, to produce that result, but for the moment, it seems to me that the orders sought by the mother are in the best interests of the three children who are all, as yet, still young.

24. I order accordingly.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  31 May 2010