Rose & Rose
[2022] FedCFamC1F 691
Federal Circuit and Family Court of Australia
(DIVISION 1)
Rose & Rose [2022] FedCFamC1F 691
File number(s): ADC 392 of 2019 Judgment of: KARI J Date of judgment: 24 August 2022 Catchwords: FAMILY LAW – CHILDREN – Parenting Orders – With whom a child lives with – Best interests of 4 year old child - Where proceedings have subsisted for majority of the child’s life before the same Judge – Where there were previous proceedings – Where those proceedings were finalised by a Judicial Registrar after a Dispute Resolution Conference – Where the final order provided for the child to transition from the respondent to the mother’s primary care despite the court having suspended the mother’s time spending with the child 12 months earlier – Where the current tranche of proceedings were commenced by the mother within short compass of the final order as the respondent had retained the child – Where the Independent Children’s Lawyer expressed concern over the pressure brought to bear on the respondent who was a self-represented litigant at the Dispute Resolution Conference – Where the Judge has indicated that the final order was not in the child’s best interest at the time that order was made – Where the mother failed to meaningfully participate in the current tranche of proceedings – Where the court discharges all previous parenting orders and makes a final order that the child live with the respondent and that the respondent have sole parental responsibility Legislation: Family Law Act 1975 (Cth) ss 62G, 69ZW, 91B, 102NA Division: Division 1 First Instance Number of paragraphs: 72 Date of hearing: 24 August 2022 Place: Adelaide For the Applicant: The Applicant did not appear Counsel for the Respondent: Mr Lipari Solicitor for the Respondent: Calderwood Atkinson For the Independent Children's Lawyer: Ms Parker ORDERS
ADC 392 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ROSE
Applicant
AND: MR ROSE
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
KARI J
DATE OF ORDER:
24 AUGUST 2022
THE COURT ORDERS THAT:
1.All previous Orders be discharged.
2.The first respondent, Mr Rose, have sole parental responsibility for the child X born in 2018 (“the child”).
3.The child live with the first respondent.
4.The first respondent keep the mother informed of the child’s school and treating medical practitioners.
5.The mother be at liberty to contact the child’s school and obtain copies of the child’s photographs and school reports at her own expense.
6.The mother be at liberty to contact the child’s treating medical practitioners and obtain updates as to the child’s health in general.
7.The mother be at liberty to send cards, gifts and letters to the child on no more than six occasions each year.
8.The said gifts cards and letters shall be forwarded to the first respondent’s nominated postal address.
9.Within 14 days of these Orders, the first respondent shall notify the mother of his nominated postal address.
10.The first respondent shall keep the mother informed of any change in his postal address forthwith upon the change of address and shall continue to do so until the child turns 18 years of age.
11.The mother be restrained and an injunction granted restraining the mother from referring to these court proceedings, any criminal court proceedings relating to the parties, or issues relating to the first respondent’s household in any communication with the child.
12.The first respondent shall be at liberty to return to the mother any communication which fails to comply with the injunction pursuant to paragraph 11 herein.
13.The mother be restrained and an injunction granted restraining her from:
(a)Approaching and/or remaining within 100 metres of the home of the first respondent save and except as agreed between the mother and the first respondent;
(b)Approaching and/or remaining within 100 metres of the child’s school save and except as agreed between the mother and the first respondent;
(c)Removing and/or attempting to remove the child from the care of the first respondent;
(d)Removing and/or attempting to remove the child from the child’s school, day care and/or out of hours school care.
14.All extant applications be dismissed as finalised.
15.The appointment of the Independent Children’s Lawyer be discharged save and except as to:
(a)Any appeal; and.
(b)The Independent Children’s Lawyer providing to the mother a copy of the Orders made this day and the ex tempore reasons when they are published.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under the pseudonym Rose & Rose has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
KARI J
Introduction
These proceedings come before the court in relation to the child X, born in 2018.
Sadly, the litigation in relation to X who is four-and-a-half years of age has subsisted for almost the entirety of his very short life span.
The current round of litigation comes against the backdrop of very lengthy litigation that proceeded in Division 2 of this court, or the Federal Circuit Court as it was known. In addition, that previous round of litigation proceeded before me when I was a Judge of that court.
I will come back to that history in a moment. For present purposes, however, it is relevant to understand that the mother has not participated in a meaningful way in the current tranche of proceedings despite being the applicant in the proceedings.
What that has meant is that, effectively, the child has remained in the care of the first respondent, Mr Rose, for some considerable time now and certainly since about late last year when he returned permanently to Mr Rose's sole care.
There is a second respondent to these proceedings and that is a person by the name of Mr Fletcher, and he is the suspected biological father of X. Mr Fletcher, however, has not ever participated in the current round of litigation, nor did he participate in a meaningful way in the earlier proceedings that were before me.
In both sets of proceedings, those before this court and those before the Federal Circuit Court X's interests have been represented by an independent children's lawyer, Ms Parker.
The current circumstances are such that neither the suspected biological father nor the mother appear to be pursuing any desire to spend time with or have a relationship with X. Accordingly, for reasons that will become obvious in a moment, it is the court's view that the matter should be brought to a conclusion today, and that there should be orders regularising and finalising the arrangements for X such that he live with and that sole parental responsibility be granted to Mr Rose, the first respondent, who, to be perfectly blunt, at this juncture appears to be the only person willing and able to provide for and meet X's needs.
Background
The trajectory of this matter, as I mentioned earlier, has been a long and difficult one.
X was born in 2018.
The initial proceedings commenced their life not long thereafter. There was a first hearing before Judge Mead (as she was then known) in the Federal Circuit Court on 11 February 2019. On that day her Honour made an order by consent essentially providing for X to live in a 48-hour rotating living arrangement between Mr Rose and the mother. At that point in time X was aged approximately 13 months of age.
Quite early in the proceedings and on 7 November 2019 Ms Parker was appointed as X's Independent Children's Lawyer in the proceedings.
Thereafter throughout the life of the proceedings in the Federal Circuit Court, the matter was before me in my docket from March of 2019 effectively until the proceedings were concluded in late 2021, which coincided as it turned out with my elevation to Division 1 of the Federal Circuit and Family Court of Australia.
Throughout the life of the proceedings in the Federal Circuit Court, to say that the proceedings were difficult would be a gross understatement. Throughout those proceedings I made various orders directed both to the Department of Child Protection (“the DCP”) and South Australia Police (“SAPOL”) pursuant to section 69ZW of the Family Law Act (“the Act”), so as to obtain information from each the DCP and SAPOL in relation to a myriad of issues that were confounding the court and, in particular, to assist me in the identification of risk factors in both Mr Rose's home and the mother's home. I will come back to those matters shortly.
What, ultimately, occurred, however, is that I ordered the preparation of a family assessment report pursuant to section 62G of the Act. That report was released on 24 April 2020. As a consequence of that report, there were some significant concerns raised about both the mother and Mr Rose. In particular, there were serious allegations of family violence and certain acknowledgments made by each of the parents about their respective lifestyle issues.
As a consequence of the information contained in that report, the mother effectively failing to engage in these proceedings and there being very serious concerns raised about the mother's lifestyle, I ultimately made an order on 25 August 2020 pursuant to section 91B of the Act inviting the DCP to intervene in these proceedings. At the time that I made that order, X continued to reside in the same 48-hour rotation arrangement between Mr Rose and the mother as had originally been ordered by her Honour Judge Mead on 11 February 2019.
The DCP as a consequence of that section 91B order ultimately provided three separate reports in the matter. Those reports were variously dated 16 October 2020, 28 October 2020, and 17 November 2020. I have had regard to each of those reports today.
To say that those reports made for concerning reading would be an understatement, particularly so far as the mother is concerned.
However, by their report of 17 November 2020 the DCP declined to intervene in the proceedings. The DCP identified in that report that X was safe in the care of Mr Rose. In declining to intervene in the proceedings, that is not to say, that the DCP were not concerned about the mother.
In the third and final report of 17 November 2020, the DCP noted, among other things, that they had been attempting to engage with the mother regarding X's safety from approximately late 2020 without success. In addition the mother would not agree or take up referrals to support services which the DCP considered she required to promote insight into the risk factors present in her household. The DCP commented that they had assessed the mother as exhibiting similar behaviour and interactions with the DCP to those observed previously which had led to her older children's father resuming their full-time care.
In particular, the DCP concerns outlined about the mother in that report included:
(a)Serious family violence concerns relating to the mother and her a person identified as Mr B, who had a significant history of domestic violence, and whom the mother denied being in a relationship with.
(b)There being five reported incidents of family violence between the mother and Mr B in the 2020 year.
(c)The mother suffering a loss of liberty and bruising from an incident involving Mr B at a motel in 2020.
(d)The mother’s advice that Mr B had provided care for X following this incident in 2020.
(e)DCP worker’s sighting multiple holes in the walls of the mother’s home, some which she identified as being caused by Mr B.
(f)The mother’s refusal to enter a safety plan with the DCP to ensure that Mr B was not brought into contact with X.
(g)A failure of the mother to display any insight into the “concerns for [X’s] physical and emotional safety, should he continue to have any contact with [Mr B]”.
(h)The DCP assessment at that time that the mother had limited capacity for change and limited protective capacity.
(i)The DCP assessment that X’s safety could not be ensured in the mother’s care.
(j)The DCP opinion that any time between the mother and X take place on a supervised basis.
As a consequence of all of the information conveyed to the court by the DCP, the matter was listed for a further hearing on 25 November 2020. On that occasion the mother did not attend court. In the mother’s absence and in light of the concerning information raised by the DCP, I determined that it was appropriate that all previous orders in relation to X be discharged. I then made orders that X live with Mr Rose.
The matter came before the court again on 4 February 2021. I made an order that day listing the matter for trial on 24 November 2021. I am conscious that when I made those orders, I identified that section 102NA of the Family Law Act applied because there is a final intervention order in place naming the mother as a protected person and Mr Rose as the defendant.
To the best of my knowledge and recollection, by February 2021 the mother had not seen and was not spending meaningful time with X, bearing in mind I had suspended the previous parenting orders and not provided for any time spending arrangements between the mother and X pursuant to my orders of 25 November 2020.
I am aware, however, that at the hearing on 4 February 2021 the independent children's lawyer had filed an affidavit setting out that the parties had attended family dispute resolution at the Legal Services Commission and that they had reached a heads of agreement in order to resolve the matter.
The matter next came before me in the Federal Circuit Court on 3 May 2021. At that time the mother had obtained legal representation, but she had not filed any documents nor any application in these proceedings pursuing any time spending arrangements between her and X.
The matter was listed in the winter callover of this court in August of 2021. That hearing, however, was vacated by me when the matter came before me on 28 July 2021. At the hearing on 28 July 2021 I made an order for a section 13C dispute resolution conference at the request of the parties.
By the time of that hearing, the mother had filed an application to reinstate a shared care arrangement, albeit on two-week with the mother, one-week with the father rotation arrangement.
The mother's affidavit in support of that interlocutory application, to be blunt, was slim. It contained very little information as to what had been occurring in the mother's life, her disengagement in the proceedings, and nor did she address or allay any of the court's concerns about the myriad of factors that the DCP had identified in each of their three reports.
On 10 August 2021 Mr Rose filed a response to the mother's application in which he proposed a reintroduction of the mother's time-spending arrangement, but that it occur on a supervised basis.
The dispute resolution conference that I had ordered on 28 July 2021 took place on 23 September 2021 and was conducted by a Judicial Registrar. A final resolution of the matter was brokered by the Judicial Registrar at that conference.
While I am not privy to all that occurred that day, I now understand from matters put to me at subsequent hearings by the independent children's lawyer that the conduct of that conference was one that concerned both the father and the independent children's lawyer greatly.
I was ultimately advised by the independent children's lawyer in the current tranche of the proceedings that she considered that the father, who was self-represented at that conference, had been pressured into agreeing a resolution of the matter. The independent children’s lawyer also candidly conceded to the court that the final orders that were made were not one that she was ever comfortable with, but that that she ultimately did not stand in the way of, given Mr Rose and the mother appeared to reach agreement.
It would be a gross understatement to say that the independent children's lawyer’s concern about the pressure exerted over a self-represented litigant in that setting was troubling. Particularly as the independent children's lawyer in these proceedings is a very experienced practitioner who has been undertaking independent children's lawyer work for almost the entirety of her very long career. That she considered it appropriate to raise those concerns with the court underscores that something amiss took place during that dispute resolution conference.
Having had regard to the final orders that were ultimately made that day, as I have indicated to the parties in previous hearings of the current tranche proceedings, the orders that ultimately was entered into by consent between the parties were not ones that at that juncture I would have considered would have been in this child's best interests.
In particular, the orders that were made ultimately by the Judicial Registrar provided for:
(a)The mother to have sole parental responsibility and that while she was to have some communication with Mr Rose in relation to X, she was to have the final word as to any disputes that might arise in relation to her exercise of parental responsibility.
(b)A detailed regime to reintroduce time spending between the mother and X across what can only be considered a very short period of time and building up to overnight time by 16 October 2021 and then by 30 December 2021 X would begin living permanently with the mother and spending time with Mr Rose from Thursday to Monday of alternate weekends.
Effectively, what had been agreed at that conference was a wholesale change to the living arrangements which had been in place for X since I suspended the mother's time spending and the 48-hour rotation arrangement on 25 November 2020.
What was more alarming to me when the matter ultimately came before me in the current tranche of litigation, is that at the time that those orders were entered into by the parties, there was no updating information on the court file addressing any of the concerns as to the mother's lifestyle, her disengagement in the proceedings, and all of the risk factors identified and raised in the reports from the DCP.
The arrangement that the parties agreed to at the dispute resolution conference on 23 September 2021 was reduced to a minute of order and orders were made by consent in chambers by a Registrar on 16 November 2021.
I am aware, because I have had regard to the file, that there was some delay in the preparation in the filing of the minute of order following the dispute resolution conference but, in any event, there was a final order made on 16 November 2021, which concluded the proceedings in the Federal Circuit Court.
The current litigation
These proceedings were commenced on 7 February 2022 when the mother filed a fresh application for final orders. By that document, the mother sought orders that she have sole parental responsibility, that X live with her, and that he spend no time whatsoever with Mr Rose. As part of that application, she also sought interlocutory orders providing for X to be returned to her and/or that a recovery order issue to ensure that occurred. She additionally asked that the court deal with her application urgently and on an ex parte basis.
The mother's affidavit in support of that application - and again, this is something I commented about to the mother's legal representatives at the first hearing in these proceedings – was slim. However the most pertinent information that the court understood from that affidavit was that the mother had not seen or spent time with X from approximately 15 November 2021; a little over six weeks from when the final order was made.
The matter first came before me for hearing in Division 1 of the Federal Circuit and Family Court of Australia on 24 February 2022. On that day the mother failed to personally attend the hearing and the court was advised by her counsel that she was running late. She did not however attend the hearing whatsoever.
At that hearing and for a range of reasons, but, importantly, because I considered it appropriate that Mr Rose be given procedural fairness and be given the chance to file responding documents, I determined:
(a)That it was appropriate that the proceedings be adjourned to enable Mr Rose to obtain advice and file documents.
(b)I additionally made orders directed to obtaining information from the court co-located DCP worker and SAPOL officer.
(c)I also made orders pursuant to section 69ZW of the Family Law Act directed to both SAPOL and the Department of Child Protection to obtain updated information. I did that because the father made submissions to me from the bar table at that hearing that there were ongoing concerns in relation to the mother's lifestyle.
(d)I ultimately adjourned the matter to a mention hearing on 5 May 2022 with respect to the mother's urgent application that had been filed.
The mention hearing on 5 May 2022 again proceeded before me. On that occasion Mr Rose appeared remotely as he had tested positive for COVID and he was, however, represented by counsel who was present in the courtroom.
Again, the mother was not in attendance when the hearing commenced. I was told at the commencement of the hearing that she was running late and that there were traffic delays. I recall making a comment to the mother's counsel that day that it felt like Groundhog Day and a repeat of what had occurred at the earlier hearing. Ultimately, however, the mother did attend the hearing. She was half an hour late, and the hearing was all but concluded by the time that she attended the court premises.
As a consequence of a range of information that the court had received by the time of that hearing and submissions that had been made by the independent children's lawyer, I considered it appropriate at that hearing to do a number of things:
(a)Firstly, I made an order that the mother undergo within 24 hours a urine analysis test for illicit substances and that she thereafter file the results of such tests.
(b)I also determined that during the period of the adjournment, that being until 24 August 2022, the independent children's lawyer be permitted to on no more than one occasion request a further urine analysis test from the mother.
(c)In addition, I also made an order in relation to the independent children’s lawyer requesting a random urine analysis test from Mr Rose.
(d)I made orders during the period of the adjournment that X live with Mr Rose.
(e)I additionally made orders pursuant to section 62G of the Family Law Act for the preparation of a Child Impact Report because I considered it appropriate that there be some eyes on X and his present living arrangements in the care of Mr Rose, together with some eyes on what was occurring so far as the mother was concerned.
(f)Finally I adjourned the matter to today’s hearing, being 24 August 2022.
I understand from submissions made by the Independent Children’s Lawyer that the mother did not ever comply with the orders and requests for her to undergo urine analysis testing.
The appointments in relation to the Child Impact Report were set for 25 July 2022 and 28 July 2022.
I now have the benefit of the Child Impact Report that was prepared by Ms F. It is dated 4 August 2022. What I understand from that report is that the mother did not engage in that process whatsoever.
In the preparation of her report, Ms F reviewed all the material on the previous and the current court file. In addition Ms F conducted an interview with the staff at X’s childcare/kindergarten which he attends three days a week.
In that report Ms F identified that:
(a)“The history of this matter reveals that parenting arrangements for [X] do not appear to have provided him with stability and consistency unless he is with [Mr Rose] fulltime”;
(b)Mr Rose acknowledged “a significant history of methamphetamine use and concomitant violent behaviours, with a conviction for DUI (methamphetamine) in 2019 having resulted in his loss of driving license and current reliance on his mother or public transport. The father [Mr Rose] further acknowledged having three active Intervention Orders against him by ex-partners, including the mother, but attributed his past violent and aggressive behaviours to his methamphetamine use. He reported last using methamphetamines in 2019.”
(c)That DCP and SAPOL information indicated that the mother’s three older children had returned to her primary care, and that since that time “there have been reports from neighbours in March, April, July and October 2021 as to adolescent at risk behaviours, including self-harm, trespassing, theft, alcohol and drug use (reportedly condoned and/or supplied by the mother) and disturbances at the mother’s home, which suggests that [X] would be unsafe living in that environment.”
Importantly so far as X was concerned, Ms F commented that:
(a)“[X’s] understanding of why he was not seeing his mother was that she is “naughty…she smokes in the car” which is consistent with [Mr Rose]’s account of how he has explained to [X] about why his mother is not in his life. [X] identified “missing” his mother and his three siblings, who he spontaneously named, “[C]…[D]…[E]”, before adding that he “really missed [E]”. [X] seemed quiet and preoccupied when mention was made to his mother and there was a sense that [X] is conflicted and does not understand why he is not seeing her.”
(b)“Whilst this assessment raised no concerns about [Mr Rose]’s care of [X], the repeated disruption to [X]’s relationship with his mother since he was 12 months old may be cause for concern, as such interrupted bonding with a significant other such as a mother can cause negative socioemotional affects in children of [X]’s age, such as poor social coping and problem solving skills, tantrums, clinginess, withdrawal or aggressive behaviours.”
Ultimately Ms F concluded that:
(a)“The mother’s failure to participate in this assessments in circumstances in which she has filed for a Recovery Order for [X], raises concerns about her lifestyle and her ability to commit to a process (and be subject to scrutiny by the court) aimed at having [X] back in her care.
(b)[Mr Rose] on the other hand, has consistently presented as credible and child focussed since these proceedings commenced in 2019, (as first noted by [Mr G] in the Child Inclusive Memorandum, dated 14 November 2019) and although [Mr Rose] does have a history of drug use and concomitant family violence, he seems to have addressed these issues since moving to live with his mother, who confirms that he has been drug free since 2019 and devoted to his care of [X].”
The current hearing
The mother, again, is not present at today's hearing and she no longer has legal representation; her solicitors filing a Notice of Ceasing to Act on 22 June 2022.
I am satisfied that the mother has knowledge of today's hearing for two reasons:
(a)Firstly, she was represented by legal representatives, solicitor and counsel, at the last hearing when today's date was set.
(b)Secondly, she herself was present at the tail end of the last hearing when today's date was set.
(c)Additionally, the independent children's lawyer has properly attempted to ensure that the mother did not lose sight of today's hearing date. I know that because I have received into evidence as exhibit “ICL1” communication passing between the independent children's lawyer and the mother, starting with a letter sent by email to the mother on 11 August 2022 by the independent children's lawyer which confirms today's listing and that it was to take place in person.
In terms of the information available to the mother in advance of today’s hearing, the communication sent by the independent children's lawyer on 11 August 2022 to the mother included a document that the independent children’s lawyer had filed in these proceedings on 10 August 2022. That document was a proposed minute of order and an outline of argument setting out that which the independent children's lawyer proposes occur at today's hearing.
Importantly, for present purposes, the proposed minute of order provided notice to the mother that the independent children’s lawyer promoted orders that:
(a)X live with Mr Rose and that he have sole parental responsibility.
(b)The mother's contact with X be limited to the exchange of information from the child's school and the mother being at liberty to write and communicate with X through Mr Rose.
(c)There be a range of injunctive orders including orders restraining the mother from attending at Mr Rose's home or near its vicinity, attending at X's school or near its vicinity, or attempting to remove X from the care of Mr Rose. The independent children’s lawyer otherwise provided in that minute of order the proceedings be concluded.
Having received communication from the independent children's lawyer, the mother ultimately responded by email on 15 August 2022 at 9.38 am. In that correspondence the mother stated as follows:
Good Morning Georgina:
I contacted your office late Friday afternoon and was told to email you.
I have just gone through a number of emails in relation to my court case.
First and foremost, as you are aware my lawyer has ceased acting for me and to date I have been unable to obtain new legal representation but am still pursuing this, as I am unsure what to do in terms of everything with the case as it stands. I do not know what my requirements are at this time, nor do I know how to prepare a response affidavit or file any material, so currently I am trying very hard to find affordable representation to assist me.
I apologise that I did not attend a phone appointment? on the 25th July, I was actually bed ridden with Covid and really quite unwell. I can provide a letter from my work to substantiate this. I did not have any contact details for [Ms F] to have been able to let her know.
I will also make mention that I have made contact with [X]’s biological father, [Mr Fletcher] – previously referred to as the second respondent, and he fully intends on attending the next court date.
Kind Regards,
[Ms Rose].
The mother in that communication appears to attempt to explain her lack of engagement in the child impact report process and appointments on 25 July 2022. She does not explain her lack of engagement in the appointments on 28 July 2022 being part 2 of that assessment process.
The mother also appears to indicate that X's suspected biological father, Mr Fletcher, was likely to participate in these proceedings and that he would be attending the next court date. That comment suggests to me two things: firstly, that the mother by her own hand has confirmed her knowledge of the adjourned court date and secondly, that communication makes it clear to me that the mother was cognisant of her lack of engagement in those proceedings and that the proceedings may well be finalised in her absence.
For all of those reasons, I am satisfied not only that the mother had notice of these proceedings, but also that the mother had specific notice of the orders that the independent children’s lawyer promoted the court make today.
I now also have the benefit of a minute of order that has been provided to me during the course of today's hearing as prepared by counsel for Mr Rose. That minute, essentially, reflects in almost identical terms that which the independent children's lawyer proposed. It however goes a little further in providing more detail to those orders promoted by the independent children's lawyer. In my view, that proposed minute is not substantially different to that which the independent children's lawyer promoted and about which the mother had notice.
Discussion
As I commented at the outset of these reasons, at this juncture I am certainly satisfied that the only person that is willing and able to meet X's needs and provide stable, safe and consistent care for X is Mr Rose. He has been doing so for a very significant period of time and almost certainly he has been doing that solely for a period of over 18 months now. Prior to that, he was meeting X's needs on a 48-hour rotational basis.
Across all of the reports that I have had the benefit of reading in this matter, it is clear to me that Mr Rose has been candid in the difficulties and challenges that he has faced over the course of his life. He has acknowledged that he has engaged in poor conduct, including family violence generally and as and between he and the mother. He has acknowledged the use of illicit substances, in the past.
However, the reports from the Department of Child Protection and those prepared in the course of these proceedings by a court child expert suggest to me that X coming into Mr Rose's care has been a motivating and driving force in him getting his life on track such that he is able to meet X's needs, protect him from harm and to do all that he can to ensure that X is safe and able to live life to the fullest.
I comment again, he appears at this juncture along with his mother to be the only adult person in X's life willing to do that and he is to be commended for doing so.
Those comments should make it clear that with regard to all of the information that the court has before it, coupled with the long trajectory of this matter, there is no doubt in my mind that the orders promoted both by the independent children's lawyer and the father's counsel are ones that I, without reservation, consider to be in X's best interests.
Perhaps more importantly, however, it is my very firm view that these proceedings must be brought to a conclusion. It does not serve X's interests for these proceedings to continue and for Mr Rose to have to continue to come to court with uncertainty as to X's future.
However even if I conclude the proceedings today, that does not mean that there is not a prospect that the proceedings might be resumed again, and I can see Mr Rose nodding his head. It may be that the mother at some point or, indeed, Mr Fletcher at some point may get their act together, get their lives on track, such that they are able to provide a safe and meaningful relationship with X. While that is not the case at the present moment, that may be something that they are able to offer X in the future.
While I am not able to predict what the future holds, if such applications are brought, when they are brought, they will be considered on their merits at that time.
So for all of those reasons I now make orders in terms of the minute of order prepared by Mr Lipari on behalf of Mr Rose.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 13 September 2022
NOTE: These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to make the orally delivered reasons easy to read.
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