Roland and Henry and Ors

[2010] FamCA 1213

FAMILY COURT OF AUSTRALIA

ROLAND & HENRY AND ORS [2010] FamCA 1213

FAMILY LAW – CHILDREN – Where the children live with the paternal uncle and aunt – Where the mother has filed a Discontinuance of an Initiating Application

Family Law Act 1975 (Cth)

APPLICANT: Ms Roland

1st RESPONDENT: Mr Henry

2nd RESPONDENTS: Mr and Mrs S

INDEPENDENT CHILDREN’S LAWYER: Mr R. Grant

FILE NUMBER: BRC 6278 of 2008

DATE DELIVERED: 16 December 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 16 December 2010

REPRESENTATION

THE APPLICANT: No appearance

THE 1^ST RESPONDENT: No appearance

SOLICITOR FOR THE 2^ND RESPONDENTS: Ms Holley of Kennedy Spanner Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr R.J. Grant

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. All previous parenting orders in respect to of the children L born … May 1994, D born … July 1995, N born … November 1996, B born … January 2000, and W born … August 2001 be hereby discharged.

2. The children N born … November 1996, B born … January 2000, and W born … August 2001 (hereinafter “the said children”) live with the Second Respondents, namely Mr and Mrs S.

3. The Second Respondents and the mother, Ms Roland, have equal shared parental responsibility for the said children.

4. The mother spend time and communicate with the said children at all reasonable times as may be agreed with the Second Respondents.

5. The father be permitted to communicate with the said children in writing on no more than one (1) occasion per month AND FURTHER send gifts to the said children on the occasion of their birthdays and on Christmas Day.

6. These orders operate as an authority to the school/s attended by the said children from time to time to provide to the mother, the father and the Second Respondents, at their respective cost, copies of all school reports, school newsletter, application for class photographs and the like.

IT IS ORDERED THAT

1. The matter be adjourned to 10.00am on Thursday 17 March 2011, in the Brisbane Registry of the Family Court of Australia.

2. The father file and serve on or before 4.00pm on Friday 18 February 2011:

   a.A response to the Application in a Case filed by the Independent Children's Lawyer on 15 September 2010, setting out any parenting orders sought by him;

   b.A response to the Response to Initiating Application filed by the Second Respondents Mr and Mrs S, on 19 October 2010.

   c.An affidavit outlining the basis upon which he asserts that parenting orders ought be made in his favour and all matters considered by him to be relevant to the parenting orders sought by him;

   d.A Notice of Address for Service.

3. At the adjourned hearing on 17 March 2011, and in the event that the father either:

   a.fails to appear; or

   b.fails to otherwise comply with the orders made by Registrar Coutts on 29 September 2010; or

   c.fails to file any material setting out the orders which he seeks from the court;

   then an application for final orders in default of that appearance or participation, shall be heard on that day.

4. The Response to Initiating Application filed by the Second Respondents Mr and Mrs S, on 19 October 2010 be regarded for the purpose of further proceedings, as an Application by the Second Respondents seeking the orders set out in that document.

5. Order 5 of the orders made by Registrar Coutts on 29 September 2010 is discharged.

IT IS FURTHER ORDERED THAT

1. 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 Roland & Henry and Ors 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

And

MR HENRY

1^st Respondent

And

MR AND MRS S

2^nd Respondents

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter comes before me for further mention at the end of what can be seen to be a very lengthy and very unattractive history in respect of the children the subject of these proceedings. 

2. Some indication of each is given by reference to a couple of matters which, in a sense, say all that needs to be said in respect of what the children have endured. 

3. As Mr Grant points out, Mr A, who is an officer of the Department of Child Safety, swore an affidavit filed in these proceedings on 21 April 2010.  Mr A summarises the departmental involvement in this family. As Mr Grant rightly points out, that comprises some 60 pages of documents recording departmental involvement over a period of about 22 years. 

4. On 22 October 2010, the mother of the children filed a Notice of Discontinuance and she is not a party to these proceedings. 

5. Some further indication of the lengthy and unattractive history of this matter, and the profound concerns which this Court (and, plainly, the State Department of Child Safety) has about these children, can be seen in two further documents before the Court.

6. First is a letter from the Commission for Children and Young People and Child Guardian dated 22 July 2010, which has become Exhibit ICL1 in these proceedings. 

7. That letter indicates that that department, too, is aware of the history of this matter and lists some 18 separate matters that form the foundation of profound concerns held by the department in respect of these children. 

8. They include, as but examples, “ongoing pattern of domestic and family violence,” “parental substance misuse,” “children demonstrating inappropriate sexualised behaviour towards their siblings,” “children being exposed to inappropriate sexual activity by their parents including alleged sexual assault of the mother by their father, [N] and other siblings being exposed to his father and previous partner engaging in sexual activity.”  The list goes on.

9. Fortunately for these children, upon the application of the Independent Children's Lawyer, the second respondents, Mr and Mrs S, have intervened.  The children are currently in their care. 

10. The department has indicated clearly and unequivocally to Mr Grant two things. 

11. First, that they are content, having undertaken the investigation required of them pursuant to state legislation, that Mr and Mrs S are providing adequate and appropriate care for the children.

12. Secondly, the department is of the view that, were Mr and Mrs S not involved with these children, an application for an order under state legislation would be made, the ultimate effect of which would be to place the children in foster care. 

13. The department have indicated, both in Exhibit ICL1, to which I have referred, and in the voluminous documents annexed to the affidavit of Mr A (and, indeed, in Mr A’s summary contained in the body of his affidavit) that they are plainly of the view that neither the mother, nor the father, have provided, or are likely to provide, at the present time, an appropriate environment in which these children can be appropriately nurtured. 

14. That is a view shared by Mr Grant, who appears as their representative, and also, in effect, by Mr and Mrs S, by reason of the position taken by them with respect to the children approved of by both the Independent Children's Lawyer and the department.

15. Into that context falls the unfortunate fact that the father is not present for these proceedings. This is despite attempts being made by the Independent Children's Lawyer yesterday to contact him (on the telephone number provided to Mr Grant by the father) and despite attempts by the Court this morning to contact the father on that same number.

16. Parenting orders are sought in an Application in a Case filed by the Independent Children's Lawyer on 15 September 2010, the effect of which would be to discharge previous orders with respect to the relevant children and to place the relevant children into the care of Mr and Mrs S, with orders for parental responsibility in their favour to be shared equally with the mother.  Those orders also provide that the father be permitted to communicate with the children in writing. They provide:

    1.That [MR AND MRS S] be joined as Respondents to these proceedings pursuant to Rule 6.03(2)(b) of the Family Law Rules.

    2.That the Applicant be relieved from compliance with Rule 5.02(1) of the Family Law Rules.

    3.That all previous parenting orders in respect to of the children [L] born […] May 1994, [D] born […] July 1995, [N] born […] November 1996, [B] born […] January 2000, and [W] born […] August 2001 be hereby discharged.

    4.That the children [N] born […] November 1996, [B] born […] January 2000, and [W] born […] August 2001 (hereinafter “the said children”) live with the Second Respondents, namely [Mr and Mrs S].

    5.That the Second Respondents and the mother, [MS ROLAND] have equal shared parental responsibility for the said children.

    6.That the mother spend time and communicate with the said children at all reasonable times as may be agreed with the Second Respondents.

    7.That the father be permitted to communicate with the said children in writing on no more than one (1) occasion per month AND FURTHER send gifts to the said children on the occasion of their birthdays and on Christmas Day.

    8.That the within orders operate as an authority to the school/s attended by the said children from time to time to provide to the mother, the father and the Second Respondents, at their respective cost, copies of all school reports, school newsletters, application for class photographs and the like.

    9.that all outstanding applications be hereby dismissed and the Independent Children's Lawyer discharged.

17. Both Mr Grant and the solicitor for the mother urge upon the Court the making of those interim orders, despite that fact that the father does not appear this morning.

18. An affidavit of service on behalf of Mr and Mrs S deposes to service being effected on the father of their Response to the Application in a Case filed 15 October 2010; A Response to the Initiating Application; and a Notice of Address for Service each also filed the same day. 

19. Mr Grant advises that the Application in a Case to which I have just referred was served on the father by letter to the father’s then solicitor, who had filed a Notice of Address for Service via facsimile on the date on which it was filed, namely, 15 September 2010.

20. It is significant to note that, on 2 September 2010, orders were made that, in terms, contemplated the possibility, at least, of Mr and Mrs S, and the father reaching agreement. An order was made that, should agreement be reached, minutes of consent could be forwarded to chambers with a view to them being made if thought appropriate without the need for any parties to appear at a further court event (see the Principles contained in s 69ZN.)

21. The possibility of agreement emanated from the facts earlier outlined, a very important component of which is the attitude of the Department of Communities. 

22. On 29 September 2010, an order was made by Registrar Coutts, and, it is to be noted, on that occasion the father appeared via telephone link.  The Registrar made orders by consent permitting Mr and Mrs S to be joined as parties to the proceedings, and, importantly, the order records the listing of the hearing of this Application in a Case today.  Thus, it is plain the father had notice of this hearing and the application.

23. The Registrar’s orders further provide that the father file and serve any Response to the Application in a Case by 19 November 2010; file a Notice of Address for Service within seven days of the date of the order; and file and serve a Response to the Initiating Application, also by 19 November 2010. 

24. This hearing takes place approximately four weeks after 19 November 2010, and none of those documents that the father was ordered to file and serve have been filed. 

25. The circumstances just outlined point, perhaps, to final orders being made in default of appearance by the father as foreshadowed by the ICL. 

26. I have determined, though, to proceed with caution, so as to afford the father appropriate procedural fairness. 

27. On the face of the material just referred to, the father would appear to have chosen not to participate in these proceedings by filing the documents he was ordered to file.  Having said that, Mr Grant indicates that his attempts to contact the father yesterday resulted in the phone call going to voicemail, and precisely the same thing occurred this morning when the Court attempted to contact him. 

28. It may be that the father has an explanation both for why he has failed to file documents in accordance with the order and why he has failed to attend these proceedings, particularly noting that he was, by the Registrar’s order, afforded the courtesy of being able to attend by telephone, should he so choose.

29. Because of that possibility, it seems to me inappropriate to make final orders by default today. 

30. However, the facts and circumstances earlier referred to point, in my view, to it being clearly in the children’s best interests for interim orders to be made in the terms sought by the Independent Children's Lawyer. 

31. The further circumstances just referred to point, in my view, to an order being made for the matter to be adjourned so as to facilitate the father with the opportunity to participate in these proceedings and to comply with the orders to which I have just referred, should he so choose. 

32. In the event that the father chooses not to so participate, consideration will be given to making final orders in default of his participation in the proceedings and/or appearance on the adjourned date, and I will include provision for that to occur in the orders that I make. 

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 16 December 2010.

Associate: 

Date:  24 December 2010