Roche & Delmore

[2021] FCCA 335

FEDERAL CIRCUIT COURT OF AUSTRALIA

Roche & Delmore & Anor [2021] FCCA 335

File number:	DNC 393 of 2019
Judgment of:	JUDGE YOUNG
Date of judgment:	1 February 2021
Catchwords:	FAMILY LAW – parenting – application for sole parental responsibility – where the children were removed from the mother’s care – where the respondents have not participated in the proceeding – court satisfied in the best interests of the children for the applicant to have sole parental responsibility
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	8
Date of last submission:	1 February 2021
Date of hearing:	1 February 2021
Place:	Darwin
The Applicant:	Appearing on his own behalf
Counsel for the Independent Children's Lawyer:	Ms Holtham
Solicitor for the Independent Children's Lawyer:	Story & Associates

ORDERS

DNC 393 of 2019

BETWEEN:

MR ROCHE
Applicant

AND:

MR DELMORE
First Respondent

MR TIMMS
Second Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	1 FEBRUARY 2021

THE COURT ORDERS:

1.That the Applicant, Mr Roche have sole parental responsibility for the children X born in 2005, Y born in 2010 and Z born in 2014.

2.That the said children live with the Applicant, NOTING the Applicant and children will soon be relocating to live in Adelaide.

3.That the said children spend time with and communicate with their mother, Ms B at times and on terms which may be agreed from time to time between the Applicant and Ms B.

4.That the First Respondent, Mr Delmore be restrained from communicating with or spending any time with X unless such communication or time is instigated by X.

5.That the Applicant will use his best endeavours to notify the mother in the event that any of the children suffer a serious injury or illness and provide her with details of the treating doctor or like professionals.

6.That the Applicant provide to the mother, when they become available, copies of any reports received relating to the children’s health, and the details of any serious or chronic medical condition the children may have, including any prognosis received and details of treatment being provided.

7.That for the purposes of order 6 above, if the subject child is aged 16 or older, then that child must first agree to the mother receiving the report and/or information.

8.That the mother is at liberty to obtain, at her cost, copies of the end of year school reports for the children, and this order shall operate as authorisation to the children’s school to provide copies of such reports.

9.That the Applicant will notify the mother as soon as reasonably practicable of any significant matter affecting the children and their education.

10.That the Applicant, Mr Roche, is authorised to obtain passports for each of the children, and each of them is at liberty to travel outside the Commonwealth of Australia, without first having to obtain the consent of their parents. 

11.That the Applicant shall send to the mother at her email address last known to him, the following, including any relevant updates:

(a)name and address of the school/s which the children are attending;

(b)address where the children are living; and

(c)current photographs of the children no less than every 6 months

12.That otherwise all extant applications be dismissed.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE YOUNG:

1. This is a parenting matter concerning three children:  X, who is 15; Y, who is 10; and Z, who is six.  X’s father is Mr Delmore.  Mr Delmore was represented at times in these proceedings, but a notice of withdrawal of his lawyers was filed some time ago giving him notice that the matter was set down for hearing today, and he has done nothing about joining in the hearing or otherwise participating.  I am satisfied that appropriate steps were taken by his former legal representative to advise him that the matter was set down for hearing today, and I assume that he has chosen not to participate.

2. Y’s father is said to be a Mr Timms, who has not participated in any way in the proceeding.

3. I am satisfied that Mr Timms was served with the initiating application at the outset of the proceedings, but he has not participated at any point.  The children have been living with Mr Roche for some years after having been removed from their mother by the child welfare authorities and placed with Mr Roche.

4. There is the child inclusive conference note where the family consultant records her interviews with the children, and the two older boys, X and Y. They remember being exposed to abuse and neglect, primarily, it would appear, through abuse of alcohol by their mother and have no wish to live with her. Their wishes are to continue living with Mr Roche, who according to them looks after them properly and they feel safe and cared for with him.

5. Z is too young, apparently, to remember the conditions in her mother’s care.  She was probably only about one.  She has spent some time with her mother, as has Y and X I think, but it has not been overnight time in recent times.  Mr Roche initially proposed that X would go to a boarding school in South Australia.  I should say the children are Aboriginal children.  There were scholarships available to support in X’s case.

6. Mr Roche has decided that the preferable course is to essentially keep the children together, and he proposes to move to Adelaide to support X at school and presumably Y and Z at some point.  That will keep the children together.  X, at the moment, is at boarding school, but once Mr Roche moves to Adelaide, it is intended that X will return to live with him and his siblings.  The mother has discontinued proceedings and did not appear today.  So the matter is essentially undefended today.

7. I propose to make the orders sought by the independent children's lawyer with the exception of the order for the parties to share in Legal Aid’s costs.  There is no payment of their costs.  As far as I am concerned, it is highly unlikely any of the other parties will have the means to contribute to Legal Aid’s costs, and I doubt given the circumstances that Legal Aid would bother pursuing them.

8. As Mr Roche points out, that leaves him as the only person who has the wherewithal to contribute at all to Legal Aid’s fees.  Mr Roche is in receipt of Centrelink benefits.  He is not working.  He points out that having to pay fees in those circumstances would be a hardship for him.  I have little doubt that Legal Aid in its assessment of any fees that ought to be recoverable from Mr Roche would take his circumstances into account, but all in all, I think his circumstances are such that there should not be a contribution, so I do not propose to make the order.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated: 24 February 2021