Roland and Henry & Ors

[2011] FamCA 224

FAMILY COURT OF AUSTRALIA

ROLAND & HENRY AND ORS [2011] FamCA 224

FAMILY LAW – CHILDREN – Children live with uncle and aunt

Family Law Act 1975 (Cth)

APPLICANT: Ms Roland

1^st RESPONDENT: Mr Henry

2^nd RESPONDENTS: Ms & Mr S

INDEPENDENT CHILDREN’S LAWYER: Mr Grant

FILE NUMBER: BRC 6278 of 2008

DATE DELIVERED: 17 March 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 17 March 2011

REPRESENTATION

THE APPLICANT: No appearance

THE 1^ST RESPONDENT: In person by phone

COUNSEL FOR THE 2^ND RESPONDENTS: Mr Bourke

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

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Grant of Grant and Associates of Brisbane

Orders

IT IS ORDERED 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 Ms and Mr 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 FURTHER ORDERED THAT

1. All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

2. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

3. The Independent Children’s Lawyer be discharged.

4. 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 Mother

And

Mr Henry

1^st Respondent Father

And

Ms & Mr S

2nd Respondent Paternal Aunt and Uncle

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter has been before me on a number of occasions.  On 16 December 2010 I delivered ex-tempore reasons in support of orders made by me on that date.  The effect of those orders was to discharge all previous parenting orders and to grant to the second respondents Mr and Ms S orders that the three children the subject to proceedings live with them. 

2. That order also provided that the mother of the children, who has discontinued the applications that she had previously made within these proceedings, and the second respondents should share equally parental responsibility. 

3. Those orders were made on an interim basis, despite the application by the second respondents and the Independent Children’s Lawyer that orders be made on the final basis in default of participation in these proceedings by the father. 

4. It is, I think, appropriate to repeat some of what I said in those earlier reasons in respect of the current proceedings, in which Mr Grant (who appears as the Independent Children’s Lawyer) renews his application for the orders filed by him to be made on a final basis. 

5. Mr Bourke, who appears as counsel for the second respondents, supports Mr Grant’s application in that respect but seeks an amendment of it such that an order for sole parental responsibility is made in favour of the second respondents.  I will deal with that specific matter in a moment. 

6. Mr Henry appears by telephone this morning.  As the reasons given on the earlier occasion make clear, the orders made on that date could crudely be described as guillotine orders.  They contemplated orders being made on a final basis in default of further failure to participate in these proceedings by the father. 

7. The order required the father to file and serve, by 18 February ‑ that is some two months subsequent to the last hearing ‑ a number of documents including, specifically, a Response and any material that he sought to rely upon in support of any orders in that response.  The father has failed to file any such material.

8. In his appearance this morning by telephone, he indicates, I think, that his reason is that he hasn’t been able to have anyone assist him.  I don’t accept that explanation for the reasons which are about to be advanced. 

9. I note that, consequent upon the orders and reasons of 10 December 2010, Mr Grant wrote to the father on 1 February 2011 (that is to say almost two months ago) enclosing copies of the relevant material in accordance with my orders.  Mr Grant’s letter went on to stress, in very simple and direct language, the importance of the father complying with the orders for the filing of material.  Included in that letter is a statement by Mr Grant as follows:

   It is important that you seek some legal advice (perhaps from a community legal centre) urgently [bolding the word “urgently”] to help you prepare, file and serve the documents referred to in the enclosed orders.

10. That letter was sent to an address for Mr Henry in G.  I note that G is a coastal town with reasonable facilities.  It is to be distinguished, in that respect, from a remote location where facilities of the type envisaged might be difficult, if not impossible. 

11. In my earlier reasons I referred to this matter as having a “very lengthy and very unattractive history”.  That statement is, in fact, marked by its understatement.  I referred in those reasons to two exhibits before the Court and particularly a document which became exhibit ICL1. It is a letter from the Commission for Children and Young People and Child Guardian dated 22 July 2010.  It makes for disturbing reading.

12. That letter lists some 18 separate matters that form the foundation of profound concerns held by the Department in respect of these children.  I included in those earlier reasons examples and they bear repeating today:

    ·   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; and

    ·   Other siblings being exposed to his father and previous partner engaging in sexual activity.

    I emphasise that they are but some examples of the profound concerns held by the Department.  They are concerns, I should add, that are shared with equal alarm by this Court.

13. I said in those earlier reasons that it was fortunate for these children that the second respondents have intervened.  I repeat that statement here. 

14. The children are currently in their care, and I have no doubt on the evidence before me that their care represents the best hope for these children whose erstwhile development has been very significantly compromised.  I noted there, and repeat here, that the Department have undertaken extensive investigations (as might be unsurprising given the history of this case) and the Department is content that Mr and Ms S provide adequate and appropriate care for the children. 

15. I emphasise that, had Mr and Ms S not intervened to seek orders in proceedings in this Court, the Department had unequivocally indicated that they would take action pursuant to State legislation so as to ensure that there was limited time spent between these children and their parents and, importantly, that their day-to-day care was provided by someone other than their parents. 

16. A voluminous amount of material has been subpoenaed and is before the Court. It primarily consists of the departmental record of the sad and tawdry history of these children’s “development”. 

17. A departmental officer, Mr A, provided a summary of that material and that is contained in an affidavit filed by him. It can be said with certainty that the Department is plainly of the view that neither the mother nor the father have provided – or, importantly, are likely to provide ‑ an appropriate environment in which these children can be appropriately nurtured. 

18. Mr Grant, who appears as the Independent Children’s Lawyer in these proceedings, has, of course, conducted his own investigations. The view just expressed is one which he shares. 

19. On 10 December 2010 there was evidence before the Court of a continued lack of participation – and, one might be tempted to say, lack of interest ‑ by the father in these proceedings. 

20. That factor, and the matter’s long and sad history, plainly prompted Mr Grant to make application that final orders be made in default of the father’s participation.  I determined however, that caution about the application of natural justice should dictate the manner in which the proceedings were conducted. I determined as a result to, in effect, offer the father one final chance to put before the Court all such material as he considered relevant to the orders he sought. 

21. I repeat that, up until that point, the evidence before the Court was plainly to the effect that the father had chosen not to participate in these proceedings in any form despite my orders and despite the orders being spelt out with what I considered to be complete clarity by Mr Grant in the correspondence earlier referred to. 

22. The father continues to choose to file no material or play any meaningful part in these proceedings. 

23. On the last occasion I recorded that the Court had made attempts to contact Mr Henry so that he might participate in the proceedings on that occasion.  Mr Grant also then informed the Court that he, too, had made attempts to contact the father on, it should be noted, the telephone number provided to Mr Grant by the father.  Those attempts by both Mr Grant and the Court were unsuccessful. 

24. Mr Henry appears by telephone today on, I gather, the same telephone number at which he was unable to be contacted in the lead up to the last occasion by Mr Grant, or on the last occasion by the Court.

25. Mr Henry offers no meaningful explanation for why he has not earlier participated or filed any material either pursuant to the order made by me on 16 December 2010 or on any earlier occasion.  He says simply that; “I just want to see my kids”.

26. If the father chooses to make an application for time with the children, that application will, of course, be dealt with on its merits.  However, as Mr Grant properly points out, this Court is bound by mandatory, statutory obligations included among which are to bring proceedings to an end for the benefit of children the subject of those proceedings. 

27. I have no doubt whatsoever that bringing these proceedings to an end, and establishing the children in the care of Mr and Ms S is undoubtedly in their best interests. 

28. I am not persuaded in any way, shape or form that I should afford to Mr Henry any further opportunities to participate in these proceedings in light of his lack of participation thus far and in any event, in light of the appalling material contained in Exhibit ICL1 which would make any sane person feel profoundly troubled.

29. For those reasons, then, I propose to make the interim orders made on the last occasion as final orders.

30. I need, however, to say something about one further matter. 

31. Mr Bourke, who appears as counsel for Mr and Ms S, argues, in light of the very history to which I have made reference, and the attitude of the Department (and, indeed, one might say, the attitude of each of the children’s parents) that, rather than that which is proposed at paragraph 3 of the proposed orders, there should be an order for sole parental responsibility in favour of the second respondents (as distinct from equal shared parental responsibility).

32. The arguments in favour of that order might be seen to have real merit by reasons of the matters earlier referred to.  However, although the mother has discontinued in these proceedings, Mr Bourke properly concedes that she has no notice of any such application. 

33. Also, I have said in earlier judgments that I consider that an order for “sole parental responsibility” might be seen as an order which removes from a parent a right at law which they otherwise have (ie all of the rights, authorities, duties and responsibilities attaching to parenthood).  It seems to me that any such order is a significant interference with the rights of a person and should not be made lightly.

34. That being the case, if I was persuaded to make such an order it should, in my view, be made on notice to each of the parents whose parental responsibility would be removed by such an order. 

35. Mr Bourke properly concedes that no such notice has been given and, in those circumstances, I am not persuaded that I should make any such order.  Such an order can, of course, be applied for and, if such an order is applied for on notice, it, too, will be dealt with on its merits.

36. I order accordingly.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 17 March 2011.

Associate: 

Date:  4 April 2011