Robinson and Shannon (No. 2)

[2014] FamCA 576

FAMILY COURT OF AUSTRALIA

ROBINSON & SHANNON (NO. 2) [2014] FamCA 576

FAMILY LAW – CHILDREN – Ex parte hearing – Where the Applicant Father is applying on an ex parte basis for urgent interim parenting orders.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Mr Robinson

RESPONDENT: Ms Shannon

INDEPENDENT CHILDREN’S LAWYER: Mr Purcell

FILE NUMBER: TVC 853 of 2010

DATE DELIVERED: 24 July 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 24 July 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Dillon Bowers Lawyers

FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Purcell Taylor Lawyers

Orders

ON AN EX-PARTE BASIS:

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The Father be granted leave to make this application without notice pursuant to Rule 5.12 of the Family Law Rules 2004.

1. All previous parenting orders be discharged.

1. The children, M born … 2004 and B born … 2007 live with the Father.

1. The Father have sole parental responsibility for the children.

1. The Mother is restrained and an injunction hereby issue restraining her and her servants and/or agents from attempting to attend the children’s schools or attempting to remove the children from their schools.

1. The Director-General, Department of Communities, Child Safety and Disability Services is requested to provide a further Magellan Report, given their recent involvement in these proceedings, for the further hearing of these proceedings at 10.00 am on Wednesday 30 July 2014.

1. Pursuant to s 91B of the Family Law Act 1975 (Cth), the Court requests the intervention of the Director-General of the Department of Communities, Child Safety and Disability Services in the proceedings, relating to the welfare of the children, M born … 2004 and B born … 2007.

1. Upon request from the Director-General, the Registry Manager permit inspection of the Court file by a person authorised by the Director-General and copying of any part of it to enable consideration of the request to intervene in the proceedings.

IT IS ORDERED THAT:

1. The further hearing of the Father’s Application in a Case filed on 24 July 2014 be adjourned for hearing before the Honourable Justice Kent at 10.00 am on

   30 July 2014, with all parties given leave to appear via video link from the Townsville Registry of the Family Court.

1. The Father forthwith serve his Application in a Case and affidavit filed on

   24 July 2014 and this Order on the Mother.

1. IT IS DIRECTED that a copy of the transcript of today’s proceedings be provided to the Father and Independent Children’s Lawyer.

1. IT IS DIRECTED that the Mother be provided with a copy of the transcript of today’s proceedings; this Order and the Reasons for Judgment delivered today, as soon as possible.

1. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Robinson & Shannon (No. 2) 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: TVC 853 of 2010

Mr Robinson

Applicant

And

Ms Shannon

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application made without notice within the meaning of rule 5.12 of the Family Law Rules 2004 (Cth) (“the Rules”) concerning the children M born in 2004 and B born in 2007.

2. The application is brought by the Father of those children and is supported by the Independent Children’s Lawyer appointed to independently represent the interests of the children in these proceedings pursuant to s 68L of the Act (“the ICL”).

3. The parenting proceedings concerning these children have been on foot for some considerable time. They commenced in the Federal Circuit Court and were transferred in late 2013 to this Court. The trial of the final parenting proceedings is likely to be held in Townsville on 9 September 2014.

4. This matter came before me on 6 June 2014 when I conducted a callover in Townsville of cases pending in that registry. Given the issues in the case I made orders permitting the ICL and the mother to publish the report of Dr R, and my Reasons that day, in the hope that that might assist the Mother obtaining a grant of Legal Aid so that she might secure representation in the proceedings.

5. The report of Dr R, expert psychiatrist, contains concerning opinions in relation to the Mother’s mental health. Dr R opines that the Mother has a paranoid delusional disorder and amongst other things he recommended that she receive immediate treatment with a combination of pharmacological and psychological therapies.

6. Dr R notes in his report that the Mother has suffered for a lengthy period of time from her delusional beliefs being undiagnosed and untreated. The beliefs centre on assertions by the Mother as to the Father sexually abusing the children and surround an allegation that the Father and/or the paternal grandmother drugged her in a manner that removed her memory over a lengthy period. The report from Dr R is detailed, as is the family report recently obtained dated 21 July 2014 of Ms T.

7. The recommendations contained in that recent family report were that the children live with the Father and that he have sole parental responsibility for them. It was recommended that the Mother ought commence spending supervised time with the children firstly at a contact centre and thereafter with the maternal grandfather supervising that time on certain provisos in relation to the Mother attending and complying with a treatment regime to address her mental health issues.

8. Both the report of Dr R and the family report referred to, flag a range of potentially adverse issues for the children by some worsening of the Mother’s mental health condition or some worsening of the manifestation of that condition insofar as it affects the children.

9. This application arises in urgent circumstances where today the Mother attended upon a lawyer in Townsville for the purpose of obtaining assistance with her application for legal aid.  There is evidence that upon being advised about her prospects in these proceedings the Mother demonstrating very concerning behaviour.  Without detailing all of that behaviour the letter from the solicitor concerned, Mr C, records that the position was reached that Mr C had to summon police to his office because of the Mother’s increasing agitation. Mr C was concerned for the children’s welfare if the Mother were permitted to leave his office with the children. Despite his attempts to have the Mother calm down, the Mother asserted, so Mr C says, that she might abscond with the children and he attempted to find out where she would go and she refused to tell him. Mr C sought to clarify with the Mother when she proposed to leave and again she would not give Mr C an answer to that question.

10. The police arrived at the office, as did the Father who had been advised to attend at the office to collect the children. The Police suggested that the Father take the children to the Department of Communities, Child Safety and Disability Services (“the Department”) and the Father’s affidavit filed on this application confirms that he did so.

11. It seems that whilst the Father was at the office of the solicitor Mr C, the Mother emerged from an interview room and upon seeing the Father and the police became enraged and it is said that she attempted to assault the Father and had to be restrained by the police. It appears that the police spent some 20 minutes calming the Mother down before the police were able to sufficiently calm her to send her home.

12. The Police informed Mr C that they were of the view that the Mother was not able to care for the children currently. The police indicated that they would be attending the Department to inform them that from the perspective of the Police the Mother was not able to care for the children at this time.

13. Arising out of the letter from Mr C recording these events attached to the Father’s affidavit, an order is sought that the Mother be restrained from attending at the children’s school and that the Mother be restrained by injunction from removing the children from that school. The ICL raised his particular concerns as to that prospect.

14. Plainly enough s 68B of the Family Law Act 1975 (Cth) (“the Act”) provides the source of injunctive power of this Court in relation to areas concerning children. I am satisfied that it is in the best interests of these children that the injunctive powers be exercised in the manner sought.

15. I am conscious of the relevant authorities that caution must be taken on a hearing such as this which is made without notice to the Respondent Mother and in circumstances where she has had no opportunity to be heard in relation to the application. It is for that very reason that the further hearing of this application will be soon and in accordance with the rules I will order that there be a further hearing of this matter at 10.00 am next Wednesday 30 July 2014.

16. I am satisfied that there is an urgent need to act in this case in the sense of making orders now and that should occur rather than shortening the time for service of the application and fixing an early date for hearing after service.

17. I am satisfied in the circumstances of this case that orders should be made without notice to the Mother by securing her having the opportunity as soon as next Wednesday to appear on the further hearing of the application.

18. I am satisfied on the material referred to that there is a history of allegations of child abuse as recorded in the reports I have referred to. I have in the course of the hearing referred to the particulars of orders currently in force between the parties and the affidavit of the Father records non-compliance with the operative parenting order, most recently, last weekend when the children were not at school and not made available to him for collection in accordance with that order.

19. Neither the Respondent Mother or any lawyer on her behalf has been told of the intention to make this application but that has not been possible in the circumstances described.  I am satisfied the orders must be made urgently in the circumstances to which I have briefly referred.

20. I record that my references to matters contained in the solicitor’s letter and contained in the application are made in circumstances where it may well be the Mother challenges the veracity or accuracy of the information to which I have referred. Nothing which I have said should be taken as implying that the Court has reached concluded findings about any issues or matters of fact raised in the material. The purpose of recording those matters is simply to meet the requirements of r 5.12 of the Rules and the relevant law in relation to dealing with an application such as this on an ex parte basis without notice to a Respondent.

21. I will direct that there be a transcript of these proceedings today made available to the parties. I will order that the Mother forthwith be served with the application filed today and the affidavit of the Father. I will direct that the Mother be provided with a copy of the transcript of today’s proceedings and the orders and reasons as soon as possible.

22. I will otherwise order, until further order, that all previous parenting orders be discharged; that the children live with the Father and he have sole parental responsibility for them. I will make an order in the usual terms requesting the Department provide a further report given their recent involvement, if possible, by next Wednesday 30 July 2014. I will make the usual order requesting the intervention of the Department.

23. As earlier referred to, I will make the orders for injunctions concerning the Mother’s attendance at the children’s school or any removal of the children from the children’s school.

24. I will otherwise order that the application be adjourned for further hearing before me at 10.00 am Wednesday 30 July 2014. I will give leave to the parties to appear at the hearing by videolink from the Townsville Registry of this Court.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 24 July 2014.

Associate: 

Date:  24 July 2014