Roland and Henry

[2010] FamCA 694

FAMILY COURT OF AUSTRALIA

ROLAND & HENRY [2010] FamCA 694

FAMILY LAW – CHILDREN – With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT: Ms Rolandy

RESPONDENT: Mr Henry

INDEPENDENT CHILDREN’S LAWYER: Mr Grant

INTERVENOR: Ms S

FRIEND OF THE COURT: Ms Day

FILE NUMBER: BRC 6278 of 2008

DATE DELIVERED: 30 July 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 30 July 2010

REPRESENTATION

THE APPLICANT: Appearing on her own behalf

SOLICITOR FOR THE RESPONDENT: Ms Adcock of Legal Aid Queensland

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Grant of Grant & Associates

SOLICITOR FOR THE INTERVENOR Ms Ewart

SOLICITOR FOR THE DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES) Ms Day as a friend of the Court

Orders

IT IS ORDERED THAT

1. The matter be adjourned for further mention before his Honour Justice Murphy at 9.30am on 2 September 2010 in the Brisbane Registry of the Family Court of Australia.

2. Leave is granted for the Applicant Mother, the Respondent Father and his legal representative, and the Paternal Aunt and/or their legal representative, to appear by phone at the hearing on 2 September 2010, and for such purpose should advise the Registry of the appropriate landline phone number for such hearing.

3. The father’s application for interim time with the children, pending the further hearing of this matter, is dismissed.

IT IS DIRECTED THAT

1. The Paternal Aunt file and serve, by 4.00pm on 27 August 2010, all such documents according to the Family Law Rules 2004:

   a.as are necessary, to effect her intervene in these proceedings as a party; and

   b.in the form of an application seeking such orders as she might seek.

IT IS FURTHER ORDERED THAT

1. To the extent that the exception provided for in Section 121(9)(g) of the Family Law Act 1975 or the other provisions of that subsection do not otherwise authorise same, the Independent Children's Lawyer shall have leave to publish such material forming part of the Court record in these proceedings, including but not limited to, any reports prepared by any Psychiatrist, Psychologist, Family Consultant or otherwise, and any Reasons or Orders, to all such person or institutions as the Independent Children's Lawyer shall consider proper and appropriate.

NOTATION

(a)It is respectfully requested that the Director of Legal Aid Queensland give favourable consideration to a grant of Legal Aid to the Paternal Aunt Ms S, in circumstances where acute issues in respect of five children the subject of these proceedings, are complex and difficult and where their circumstances involve the intervention of the Department of Communities (Child Safety Services) and the Commission for Children and Young People and Child Guardian.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 6278 of 2008

MS ROLAND

Applicant Mother

And

MR HENRY

Respondent Father

EX TEMPORE

REASONS FOR JUDGMENT

1. I have indicated that I will make orders in this very complex matter facilitating a final hearing with the paternal aunt as an applicant for parenting orders. The father otherwise applies today for an order that would see him having time, albeit at a contact centre, in the five weeks between today and the next mention of this matter 2 September 2010.

2. The facts and circumstances of this case are both complex and, for the children, tragic.  They include the fact that a child the subject of these proceedings, D, not yet 15, has been charged in the past with serious criminal offences, and I am informed today that, whilst on probation for those criminal offences, has been charged with a further very serious criminal offence, namely, armed robbery. 

3. The complexities of this case and the acute issues which it raises for the children have been the subject of not only intervention by the Department of Communities (Child Safety Services) but also the Commission for Children and Young People and Child Guardian. 

4. Investigations by the latter have resulted in a report prepared for the Independent Children’s Lawyer in these proceedings, Mr Grant, dated 22 July 2010, which is exhibit ICL1 in the proceedings before me. 

5. That report and the material before me more generally (including an affidavit filed by a departmental officer, Mr A, on 21 April 2010), reveals a plethora of acute and serious issues for these children.

6. Among the significant complexities of the case are concerns expressed by the Commission for Children and Young People in the report prepared as recently as a week or so ago.  For example:

   The level of dysfunction occurring within the father’s residence which is documented within departmental records indicates that neither [L] nor [D] should remain in their father’s care.  Further, the current IPA would appear inappropriate, given [D’s] unwillingness to engage with departmental officers.  [D] remaining in his father’s care would not appear appropriate.  However, the likelihood of [D] residing elsewhere is questionable.  It is also highly unlikely that [D] would agree to be placed in out of home care, and if this occurred, there would be a high likelihood that he would abscond from a departmentally approved placement and self place with his father.

7. Mr Grant submits, accurately, as it seems to me, that, on the evidence before the Court, historically the children can be seen to have been cared for “two camps.”  The older two children, D, to whom reference has just been made, and L, are cared for within the “father’s camp”; the remaining three children are cared for within the “mother’s camp.” 

8. The mother’s capacity to provide care is attended by profound difficulties and has produced a plethora of problems and difficulties for the children revealed in the material just alluded to. 

9. As but one example of that, in the report just referred to, the Commission for Children and Young People say this:

   In consideration of the children’s special needs, their challenging behaviours, and the child protection history for the children whilst in their mother’s care, the Family Court could consider requesting the children undergo a paediatric assessment to determine what therapeutic support the children require and what support the mother may need to access to meet the children’s needs.  It would also be beneficial for support services to be linked with these children and their mother to increase the level of protected factors for these children and increase the mother’s parenting abilities.

10. Within that complex and difficult set of circumstances, and as a result of the “two camps” to which reference has just been made, an outstanding fact before the Court in the context of the current application is that the father has not seen the younger children, with whom he now seeks to spend somewhat truncated time, for a period of about two years.  In a similar vein, he says that there have been significant difficulties in having telephone contact with them. 

11. But a very significant fact, in terms of the father’s current application, which, it needs to be emphasised, is an application made within truncated proceedings and for a period of approximately five weeks until the matter returns to Court, is made in the context of him not having seen or spoken to the three younger children for a period of approximately two years.  And that, in turn, has occurred within the complex and difficult circumstances to which I have earlier made reference. 

12. Whether one deals with the section 60CC Considerations seriatim or in the broadbrush, general way in which I have, I can see no case that would persuade me that it is in the best interests of these children for them to see their father in the five-week period until this matter returns to the Court on 2 September.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  10 August 2010