Rasher and Carlou and Ors

[2019] FamCA 801

FAMILY COURT OF AUSTRALIA

RASHER & CARLOU AND ORS [2019] FamCA 801

FAMILY LAW – CHILDREN – where the father is incarcerated and facing serious criminal charges – where the child has not had any meaningful contact with the father for approximately four years – s 68B restraint made against father coming into contact with the mother and child ‑ where paternal family members seek to maintain a relationship with the child – final orders made for the child to live with the mother and communicate with paternal family members.

Family Law Act 1975 (Cth), ss 68B

APPLICANT: Ms Rasher

FIRST RESPONDENT: Mr Carlou

SECOND RESPONDENT: Mr Chester

THIRD RESPONDENT: Ms Chester

FILE NUMBER: BRC 5667 of 2016

DATE DELIVERED: 20 September 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 20 September 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms M Murphy

SOLICITOR FOR THE APPLICANT: Berck Solicitors

THE FIRST RESPONDENT: No appearance

THE FIRST RESPONDENT: Self-represented

THE THIRD RESPONDENT: Self-represented

THE INDEPENDENT CHILDREN’S LAWYER: Ms K Perren
Swanwick Murray Roche Lawyers

Orders

1. All previous parenting orders be discharged.

2. The mother have sole parental responsibility for major long term decisions relating to the child X Carlou (also known as X Rasher) born … 2013.

3. The child live with the mother.

4. The child spend no time and not communicate with the father unless otherwise ordered by a Court.

5. Pursuant to s68B of the Family Law Act 1975, the father is hereby restrained and an injunction issue restraining him from approaching the mother or child, the child’s school or places of public sport or entertainment attended by the child, mother’s place of employment or the residence of the mother or child.

6. That X communicate with the Second and Third Respondent on the last Sunday of each calendar month by telephone. For the purpose of the communication the Second or Third Respondent shall initiate a call to the mother’s contact phone number between 3.30pm and 4.30pm and the mother shall ensure that X is available to receive the call and communicate in privacy.

7. The mother agrees that in the event she is travelling with X to the B Council area then subject to any other agreement in writing between the parties;

   (a)she will give the Second and Third Respondents seven (7) days written notice of her intention to be in the area by text message and nominate a time for X to spend up to two (2) hours with the Second and Third Respondent at C Park Suburb D (“the C Park”) or such other a location as agreed between the mother and the second and third respondents.

   (b)The mother shall be at liberty to remain in the C Park environs during X’s time with the Second and Third Respondent but must provide X with privacy in her communication with them.

   (c)The Second and Third Respondent, will not remove X from the C Park

   (d)during this time.

8. The Second and Third Respondent are restrained from allowing X to communicate with the father when they are communicating or spending time with her and must immediately contact the mother and make arrangements to return X to her if they reasonably believe the father is present or intends to attend at any time they are spending X.

9. The mother and Second and Third Respondents shall exchange contact phone numbers within twenty-four hours of this order and twenty-four hours of any change to that number. The second and third respondents are restrained from providing or publishing to the father and mother’s contact phone number.

10. In the event that the Second and Third Respondent wish to send letters or gifts to X then the mother shall provide them with a contact address for that purpose. The Second and Third Respondents are restrained from providing that contact address to the father and shall not allow the father to send gifts or letters to X as part of their communication with her.

11. That all other applications be dismissed.

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

IT IS NOTED

A.That these Orders were made in the absence of the father because of the inability off the Court to contact him today at his place of incarceration, despite arrangements to do so having been made.

B.That Orders 2, 3, 6, 7, 8, 9, 10 are made with the consent of the mother, the Second and Third Respondents and the Independent Children’s Lawyer (but no consent was offered by the father).

C.The father is currently held on remand at F Correctional Centre in relation to charges relating to drug offences and a charge of unlawful carnal knowledge of a child, that child being the then girlfriend of his teenage son.

D.The father failed to comply with a direction by the court that he file an affidavit setting out the status of those charges.

E.The father informed the court that upon his release from prison he intended to “seek a fair custodial agreement” in relation to the subject child.

F.The mother asserts that the father poses an unacceptable risk of physical, emotional and psychological harm including arising out of:

a.   Risk of sexual abuse;

b.   Risk of harm arising out of drug taking and dealing; and

c.   The father’s skewed sense of moral and social values and norms and lack of insight in relation to same.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rasher & Carlou has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5667 of 2016

Ms Rasher

Applicant

And

Mr Carlou

First Respondent

And

Mr Chester

Second Respondent

And

Ms Chester

Third Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. X is a little girl now aged six and a half.  She is the product of a relationship between the Applicant mother and the First Respondent father.  At some stage of the mother’s life, and in fact, on the evidence, from an early stage of her life, the father was in a parental role in respect of the mother.

2. Whilst criminal charges relating to the conduct between the father and the mother resulted in an acquittal in 2017 for the father, nonetheless, the circumstances of the conception of this child, as set out and identified in the evidence, and in particular the family report dated 12 July 2017, is troublesome.

3. As a result of those charges, although the acquittal has been entered, the child has had no meaningful time in any way with the father since 2015, essentially when she was approximately two years of age.  It seems to me that any awareness the child has of her biological father now would be minimal, if at all.  Certainly, at the time of the report by Ms G in July 2017, Ms G was strongly of the view, as her recommendation set out, that X should live with the mother; that the mother should have sole parental responsibility and that there be no time or communication between the child and the father.

4. It seems that the family report was prepared at a time when the criminal proceedings against the father in relation to his conduct towards the mother had not been completed.  That seems to be the case and I take into account that the acquittal of a criminal charge was a factor that Ms G did not at the time take into account.  Nonetheless, the circumstances of the relationship are still, in my view, concerning and troublesome.

5. In the child’s life, Ms and Mr Chester have at times played a role.  They have played that role as, essentially, as grandparent figures to the child.  That arises from the fact that the father’s life, itself a tragedy with his parents having passed away when he was young, was raised by Mr and Ms Chester who were, effectively, his parental aunt and uncle.  Through their raising of the father, as Ms G again identifies in the report, they developed a relationship with X.  They wish to maintain a relationship of some form with X.

6. To the credit of Mr and Ms Chester, represented today by Ms Chester (aged 68 years), but speaking also on behalf of her husband Mr Chester, she confirmed that she agrees that the child should live with the mother and that the mother should make major decisions.  She accepts that at this stage of the father’s journey in life it would not be in the best interests for X to spend time with him, although, no doubt, as a parental figure for the father, she would hope that he will be able to return to freedom at some time in the future and consider then seeking to spend time with his daughter.  For reasons which I will come to shortly, when that may ever be in the future, is very difficult to predict.

7. However, Mr and Ms Chester believe, and the mother accepts, the importance to X that they maintain at least some connection with the child and they have, as a result, entered into orders that reflect an obligation by the mother to maintain a connection in some way, and very clearly prescribed time between the child and Mr and Ms Chester.  Although Ms Chester today expresses some concerns about the mother’s willingness and her ability, reflected by recent behaviour, she says, in maintaining that intention, orders being made today by consent bring with it responsibilities on the mother which, if she fails to comply with them, can have consequences through contravention proceedings.  I have no doubt that her competent Counsel representing her today, Ms Murphy and her experienced solicitor, will remind her of her obligations, because the order that issues will set them out and she must understand that she has responsibilities under the order.

8. The orders I make (not with the father’s consent) are, in my view, in the best interests of the child, which is the paramount consideration.  Lest it be thought that the father’s position has been given scant regard, and noting that he is not present today despite attempts for him to appear, I make the following observations and findings on the, I accept untested, yet broadly undisputed evidence:

   a)I have already indicated that the way in which this child was conceived is concerning.  It seems that the 20-year age difference between the mother and the father did create a clear power imbalance in their relationship and one that was also shaped by the role that he had played as a trusted parent for a child, that is the mother’s, early life;

   b)The child X has spent no time with the father since 2015.  That seems broadly because of the charges he has faced and, as I will turn to next, charges he continues to face; and

   c)The father is incarcerated, it seems, on remand.  Exhibit 1, which will be tendered and which Ms Murphy, I am sure accurately, indicated to the Court reflects that the father is facing 33 charges at this point in time, 32 of which relate to drugs, the most serious of which probably is a charge of trafficking in methamphetamines.  Thereafter there are a number of charges relating to the possession and supply of methamphetamines.  The evidence at this stage does not assist me in understanding what stage the criminal proceedings have reached.  However, the seriousness of the charges, I comfortably find, are such that if the father was convicted of, certainly the most serious charge, he would face a long period of imprisonment and he would, as a result, not be able to play any effective role in the life of the child, at least until his release, which could well be after the child has reached adulthood.

9. In those circumstances, the Court has turned its mind to any benefits that may arise for this little girl, who has spent no time with the father since 2015 and who may never, because of the father’s criminal charges, spend any time with him before she reaches adulthood, enlivening any relationship with him, which is what I would be required to do.  He is no candidate for residence, and he so concedes in his affidavit prepared in prison, sworn 22 July 2019, filed in this court on 28 August 2019, which I have read.  He asserts that Ms and Mr Chester “require an order that X live with them until I am released”.  That is not an order sought by Mr and Ms Chester for good and sensible reasons, including an absolute uncertainty about when the father may, in fact, be released.

10. I have explained to the mother, and her affidavit prepared by her solicitors makes clear that she is aware that this order, having been made in the absence of the father – the father may seek to exercise the right to set aside the order having been made in his absence.  Any such application requires the exercise of a discretion by the Court to allow the application to proceed.  If the father was to bring such an application the Court would expect to be fully informed of the extent of the current criminal charges and their progress.

11. At the core of this decision to make final orders in respect of proceedings which have been ongoing for some years is the need for this child to have stability, safety and predictability.  Although at the time of the family report’s preparation in July 2017, the very experienced Family Consultant, Ms G, for reasons that she expressed which, although untested, seem logical and sensible, asserted that the child’s best interests were to live with the mother and spend no time with the father.

12. I am satisfied on the evidence of the mother contained in her affidavit filed 15 August 2019, which although untested, again seems acceptable and reliable, that this child is actually doing well.  The mother says she is in a committed relationship with another person, and that relationship commenced in July 2018.  That male person is employed.  The mother says that X is meeting all her developmental milestones, even though she has been diagnosed with ADHD, for which she is medicated.  She attends school and appears to be enjoying school.

13. The mother, for the reasons she sets out in her Affidavit, expresses a fear as to why she would be concerned if the father knew of her whereabouts, the child’s school or the child’s whereabouts. I accept the fears that she expresses are reasonable and genuine and the child ought to be protected for her best interests, enlivening the jurisdiction under section 68B of the Family Law Act 1975.

14. It has to be said that the reason the father is not spending time or having any orders for his benefit, if not the child’s benefit at this stage, is because he is facing serious drug charges.  It is also appropriate to record that he is also facing a charge of unlawful carnal knowledge, which Ms Murphy says relates to an alleged offence in respect of the father’s teenage son’s girlfriend who was, it would seem as a result of the charge at the time of the offence, under the age of 16 but above the age of 12.

15. Bearing in mind that I am asked to consider in this case the best interests of a little girl aged six, it would, in my view, be inappropriate to allow any time or contact to occur for the reasons I have set out, as well as the fact that those very serious criminal charges – not only the drug charges, but the carnal knowledge charges need to be dealt with.

16. There has been a practice in the family law jurisdiction for some years at times to wait until certain forensic issues are determined.  That can sometimes be waiting for criminal charges to be completed; people with serious addiction issues being dealt with and mental health issues being resolved, for example.  There are cases, however, in my view – and this is one – where the benefit to the child of having finality outweighs any benefit in delaying these proceedings for what could be many more years, pending the resolution of the father’s criminal charges.  Time marches on.

17. The mother must be able to fully and completely manage this little girl’s life; help her to reach her potential and to be happy.  In my view, that is achieved by making the orders I pronounce today.  Before completing these Reasons, I do note that the child has, through the mother’s unilateral actions, had her name changed.  I suspect, although it is not clear, that this was done by changing the birth registry through some process, rather than deed poll.

18. The father, not surprisingly, as it is often a concern of a father, many of whom regard being a father as giving them some “naming rights” to their child, objects and strenuously disagrees with the actions taken by the mother.  She did not do so under any order of the Court.  However, the circumstances of this case would not, on the evidence at this stage, enliven any jurisdiction of the Court to require the child’s name to be changed back to Cosgrove.  This is not to be said as support of any actions the mother undertook, although it is clear from her Affidavit she did so with an eye to the sib ship relationships that she has created for the child, and the name that she chooses now to use, which is the mother’s birth name.

19. If at some future point in time the father was able to bring a sustainable application for parenting orders, of course, it would be open to him to seek an order of the Court at that stage that the child’s name be changed back, and that would be dealt with in accordance with the law and the circumstances at that time.  I make these comments because I did not want the father to believe I had not understood his concerns.  I want to explain why I do not share them at this stage.

20. I make the orders set out at the commencement of these Reasons, including as they do, some important notations.  Those notations inform the reader of the said orders (whether another judicial officer or otherwise), about the context in which they were made today.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 20 September 2019.

Associate:

Date:  1 November 2019