Sandall and Girty

[2014] FamCA 338

FAMILY COURT OF AUSTRALIA

SANDALL & GIRTY [2014] FamCA 338

FAMILY LAW – CHILDREN – With whom the children spend time – Where the Father was convicted of two counts of rape of the Mother and is currently incarcerated – Where the Father has not complied with orders or directions of the Court to file material in the proper form – Orders made in the best interests of the children

Family Law Act 1975 (Cth)

Re Andrew (1996) 20 Fam LR 538
Watson & Watson (2013) 49 Fam LR 239

APPLICANT:

Ms Sandall

RESPONDENT: Mr Girty

INDEPENDENT CHILDREN’S LAWYER: Ms Reaston

FILE NUMBER: CSC 795 of 2008

DATE DELIVERED: 20 May 2014

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Kent J

HEARING DATE: 20 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Trevino of Counsel

SOLICITOR FOR THE APPLICANT: Murray Lyons Solicitors

FOR THE RESPONDENT: In person by telephone

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Wilson of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: O'Reilly Stevens Lawyers

Orders

It is ordered that

1. All previous parenting Orders be discharged.

2. The Mother have sole parental responsibility for the children, E born … and N born … 2008 (“the children”).

3. The children live with the Mother.

4. The children have no contact with the Father.

5. The Father have no contact with the Mother.

IT IS FURTHER ORDERED THAT

1. All other outstanding applications be removed from the pending cases list.

2. The Independent Children’s Lawyer be discharged.

3. Pursuant to s 65DA(2) and s 62B of the Act, 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 by this Court under the pseudonym Sandall & Girty has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 795 of 2008

Ms Sandall

Applicant

And

Mr Girty

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These are parenting proceedings within the meaning of Part VII of the Family Law Act 1975 (Cth) (“the Act”) concerning two young children, namely, E born in 2009 now aged five years, and N born in 2008 now aged six years (“the children”). The proceedings were listed on the basis that they would proceed on an undefended basis given the Father’s failure to comply with directions or engage in the proceedings in any meaningful way for at least the past 12 months or so.

2. The matter has a long history in that the original application was filed in the Federal Circuit Court as long ago as December 2008. The proceedings were transferred to this Court in December 2009.

3. The proceedings occur against the background that, in 2011, the Father was convicted of two counts of rape of the Mother and was sentenced to a period of imprisonment of six and a half years. The Father remains incarcerated in B Prison. He appealed his conviction and sentence to the Queensland Court of Appeal. That court delivered judgment in 2012 and made orders that the Father’s appeal against his conviction be dismissed and his application for leave to appeal against his sentence be refused.

4. The Father, on the evidence that has been provided to me, has had a long-standing opportunity, notwithstanding his incarceration, to file applications in the usual way and in proper form and to file and provide evidence to the Court if he wished to pursue, in any meaningful way, an application for a parenting order with respect to these children. I refer, in particular, to notations made by his Honour Justice Watts on 14 February 2013 which included a notation that the Father was then asserting a proposed application that the Mother bring the children to see him at prison four times a year, on one occasion during each school holiday period, and for the children to have telephone contact with the Father on one occasion per week. The Father then sought that the order be revisited upon his release from prison.

5. On 22 May 2013 his Honour Justice Tree made orders requiring that the Father, on or before 5.00 pm on 19 June 2013, file and serve a list of all witnesses he proposed to call in his case, any information as to how they might be contacted, such as their last name, residential address and a brief summary of their likely evidence. His Honour also ordered that, on or before 5.00 pm on 19 June 2013, the Father file and serve a consolidated trial affidavit. His Honour otherwise adjourned the matter for a further callover on 18 July 2013.

6. As events transpire, the Father has not complied in any respect with the requirements of the Court in terms of the formal filing of any application or affidavit, nor has he complied with the requirements in terms of providing a list of any witnesses he intends to rely upon.

7. In these circumstances, the Father has forwarded a letter to the Court which was marked as exhibit 1 in these proceedings. It has been accepted as an exhibit not for truth of its content but to record the fact that the Father communicated with the Court by way of correspondence. Thus, it can be seen that notwithstanding the previous orders and directions of the Court in terms of any applications and affidavits to be made in proper form, the Father has not complied with those orders or directions and has simply chosen to send a letter to the Court with attached correspondence.

8. There is long standing authority, including authority of this Court, that a party in breach of orders is not entitled to be heard. It is a matter for the Court’s discretion as to whether that party is heard.[1]

   [1] See Watson & Watson (2013) 49 Fam LR 239.

9. In the result, I have allowed the Father to make oral submissions today as to his position in respect of the final orders sought by the Mother and as supported by the Independent Children’s Lawyer (“the ICL”) appointed under the Act to represent the interests of the subject children. In the result, the Father no longer agitated for any order that the Mother bring the children to the prison to visit him but contended that there ought be some kind of order for him to have telephone contact with the children.

10. I note in passing that the Father does not provide any financial support to the Mother or the children. The Mother lives in Town A and the Father is incarcerated in Town C, a car travel distance, by my estimation, of more than 10 hours.

11. Both the Mother and the ICL oppose the making of any order for telephone contact. Indeed, both the Mother and the ICL seek that there be formal orders made at this stage, on a final basis, that there be no time or communication between the children and the Father and that the Father not contact the Mother. 

12. The fact of the matter is that the Father remains incarcerated in prison. There is no evidence before me of any prospect or likelihood of him being released from prison in the median future.

13. Pursuant to Part VII of the Act, the statutory framework is set out by which the Court makes final parenting orders. Aside from the objects expressed in s 60B, the Court determines best interests of children by reference to the considerations expressed in s 60CC of the Act. Notably, by reason of relatively recent amendments to the Act and to Part VII, the primary considerations set out in s 60CC(2), namely s 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents and s 60CC(2)(b): the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence now have the added provision in subsection (2)(a) that, in applying those primary considerations, the Court is to give greater weight to the considerations set out in subparagraph (b). That is, the Court is bound to give greater weight to any need to protect children from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.

14. It may be said of this case that, on the evidence before me, the Father has had no meaningful role in the lives of these still very young children, at least since the latter part of 2011.  I have already noted, the date of his conviction of the relevant offences. I have noted the birth dates of the children and it is clear that they are still, at this stage, very young and were younger still in 2011. It cannot be concluded on any evidence before me that the Father currently has a meaningful relationship with either of these children. It cannot therefore be concluded on any evidence before me that the children would necessarily benefit from a meaningful relationship with the Father at this stage.

15. Both subsection (b) of s 60CC(2) and a number of the additional considerations expressed in subsection (3) of s 60CC resonate, given the facts and circumstances of this case.

16. It is the fact that the Father was convicted of most serious offences and most serious offences concerning the Mother. It is clear on the evidence of Dr D that is relied upon before me and on the evidence of the Mother herself that the Father’s criminality and those offences have had a significant impact upon her.

17. These proceedings have remained current for a long time now. The evidence of both the Mother and Dr D highlights and emphasises the adverse impact upon the Mother, both of the continuation of these proceedings and the prospect of any time or communication ordered by the Court as regards the children and the Father.

18. It is clear from exhibit 1 that the Father continues to maintain the position that he has been falsely accused and convicted of the relevant offences. It consequently follows that he maintains a position of showing no remorse for the offences he has been convicted of; an inability to acknowledge that he has actually offended in the forms in which he has been convicted and, as is pointed out, exhibit 1 is said to contain yet a further version from the Father as to his version of relevant events which is adverse to the Mother.

19. Read before me are the judgments of the members of the Court of Appeal of the Supreme Court when dealing with the Father’s appeal against conviction and his application for leave to appeal against sentence.

20. These children are obviously too young to express any relevant views, but it is clear within the meaning of subsection (b) that it cannot be said there is a positive relationship now between the children and the Father. By reference to his criminality, it is clear that the Father has failed to participate or fulfil parental obligations or to maintain the children. So far as practical difficulties and expenses are concerned, these are obvious in circumstances where the Mother lives in Town A and the Father is incarcerated in Town C.

21. Most fundamentally, one of the relevant considerations as expressed in s 60CC(3)(f) is the capacity of each of the parents to provide for the needs of the children, including their emotional and intellectual needs. I am satisfied on the evidence before me, both by reference to that consideration and the consideration as to family violence and the provisions in the relevant subsections concerning the importance of the Court taking into account family violence, that the evidence of Dr D and of the Mother herself I have briefly referred to looms fundamentally at the heart of the reasons why orders ought be made as sought by the Mother and the ICL.[2]

    [2] See Re Andrew (1996) 20 Fam LR 538.

22. I am satisfied, by reference to the relevant primary considerations and additional considerations expressed in s 60CC of the Act, that orders in terms as sought by the Mother and as supported by the ICL ought be made.

23. It will be the case that when the Father is ultimately released from imprisonment, he will be entitled, as indeed any parent is entitled to do, to bring further parenting proceedings on the basis that he will then be in a position to show a change of circumstances compared to the circumstances that exist today.

24. The fact of the matter is that because the Father has failed to do anything in a formal way to date, there has been little opportunity for the Court, the Mother or the ICL to test any relevant proposal of the Father by reference to relevant expert evidence. That opportunity will arrive if and when the Father brings parenting proceedings following his release from his current term of imprisonment, if that is what he elects to do.

25. For these reasons I make the orders set out at the commencement of them.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 20 May 2014.

Associate:

Date: 26 May 2014