SORRELL & HOLT

[2012] FamCA 156

FAMILY COURT OF AUSTRALIA

SORRELL & HOLT [2012] FamCA 156

FAMILY LAW – CHILDREN – orders made in default of father not appearing or complying

Family Law Act 1975 (Cth)

APPLICANT: Mr Sorrell

RESPONDENT: Ms Holt

INDEPENDENT CHILDREN’S LAWYER: Mr Blayney

FILE NUMBER: BRC 9119 of 2009

DATE DELIVERED: 17 February 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 17 February 2012

REPRESENTATION

THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Mr J Linklater-Steele

SOLICITOR FOR THE RESPONDENT: Norman & Kingston

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Blayney of Legal Aid Queensland

Orders

IT IS ORDERED THAT

1. Orders, declarations and notations be made in terms of the document titled “Minutes of Orders” sealed and attached hereto.

IT IS 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 is 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.

MINUTES OF ORDER

IT IS ORDERED:

1. That the parents have equal shared parental responsibility for the children, D, born … July 2003 and J born … June 2006.

2. That the children live with the Mother at all times that they are not living with the Father.

3. The children live with the Father at all such reasonable times as may be agreed between the parties, but failing agreement as follows:

   (a)During the school term each alternate weekend from after school Thursday until the commencement of school Monday (or Tuesday if Monday is a public holiday).

   (b)For one half of all school holidays (excepting Christmas Eve to Boxing Day) with the parties to agree as to which half and in the absence of agreement, the Father is to have the first half in even years and second half in odd years;

   (c)       For the period Christmas Eve to Boxing Day:

   (i)From 9.00am Christmas Eve to 8.30am Christmas Day with the Father;

   (ii)From 8.30am Christmas Day to 9.00am Boxing Day with the Mother.

   (d)For Father’s Day from 5pm on the Saturday immediately preceding Father’s Day until 5.00pm Father’s Day.

   (e)Notwithstanding anything herein, the father’s time shall conclude at 5.00pm Saturday on the weekend encompassing Mother’s Day.

4. Each parent must be substantially present during periods other than school or day care when the children are in their care.

5. Each parent must not denigrate, insult, criticise or abuse the other parent in the presence or hearing of the children and use their best endeavours to ensure that their friends, relatives and associates do not denigrate, insult, criticise or abuse the other parent in the presence or hearing of the children.

6. Each parent shall not discuss these proceedings, any future or contemplated proceedings under the Family Law Act or child support issues with the children or in the presence or hearing of the children.

7. The Father or his agent shall collect the children at the conclusion of school on Thursday and the Mother or her agent shall collect the children at the conclusion of the Father’s time.

8. All changeovers that do not occur at school shall occur at the entrance to the food court at Suburb E Shopping Centre or such other place as the parents may agree in writing.

9. The Father shall not permit or suffer the children to be at any building site.

10. Neither parent shall consume or be under the influence of illicit drugs whilst the children are in their care.

11. Neither parent shall permit the children to be in the presence of any person who is consuming or is under the influence of any illicit drug and in the event that the child is in the presence of any such person, the parents shall immediately remove the children from that person’s presence.

12. The person shall at all times keep each other informed of their respective residential address, landline and mobile telephone numbers and e-mail addresses.

13. The parents shall communicate with each other by text message or e-mail except in case of emergency when they shall communicate by telephone.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sorrell & Holt has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9119 of 2009

Mr Sorrell

Applicant

And

Ms Holt

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. I propose to make orders in accordance with the minutes proposed by the Independent Children’s Lawyer and agreed to by the mother, in accordance with the minutes provided to the court, signed by the mother, initialled by me, and placed with the papers. 

2. The parties separated now almost five years ago. There are two children of the relationship – D, born in July 2003, and J, born in June 2006. 

3. The initial proceedings between these parties were in respect of a de-facto property settlement, and they commenced less than 12 months after the parties separated in June 2008 in the Supreme Court of Queensland.  Proceedings seeking parenting orders were commenced by the father in the Federal Magistrates Court on 8 October 2009. An interim order was made by Burnett FM on 13 April 2010.

4. That order has pertained since that time.  It provides, in broad overview, that the parties have equal shared parental responsibility and that the children live with the father from the conclusion of school on Thursday until the commencement of school on Monday each alternate week, commencing the week after the making of these orders. 

5. The orders further provide the children live with the mother at all times when they are not living with the father pursuant to the orders.

6. There are a number of other paragraphs of the orders which pertain to matters such as not drinking to excess, taking illicit or prescription drugs, and a prohibition on the discussion of proceedings in the hearing of the children, non-denigration, and the like. 

7. In the context of the issues raised by the parties, now almost two years ago, reports have been received, first by a psychiatrist Dr M on 13 May 2010, and subsequently by Ms Q, who is a family report writer.  Ms Q has provided two family reports, the first in November 2010 and, more recently, October 2011.

8. Upon the matter being transferred to this court, a Children and Parents Issues Assessment report was prepared by family consultant Ms B on 24 December 2010.  Also a number of directions were made, the first commencing now almost 12 months ago. 

9. Those directions included a requirement for the father to take a number of steps, each of which was intended to advance the parenting proceedings in this court and to bring them to a final determination as this court, and indeed, all courts exercising jurisdiction under the Family Law Act, are mandatorily required to do by the Family Law Act.

10. It needs to be recorded that that first procedural hearing at which directions were made occurred on 22 March 2011.  Subsequently, there has been a further procedural hearing held on 31 May 2011 at which the father did not appear but at which amended directions were made for him to file material. 

11. On 8 July 2011, a further directions hearing was conducted by Registrar Stoneham; again, there was no appearance by the father.  The parties were ordered to participate fully in this dispute resolution process.

12. I’m told by Mr Blayney, who appears as the Independent Children’s Lawyer, that the father (whose evidence in this respect I have received from the bar table – see Division 12A of the Act) that the father has attended and participated in a Legal Aid conference whose purpose was to attempt to resolve all issues outstanding as between the parties. 

13. It needs also to be observed that the father has participated in the interview processes resulting in the family reports and psychiatric report to which I have earlier referred.

14. Notwithstanding his participation in those processes, the father has failed to appear at any of the procedural hearings to which I have just made reference, or at the further procedural hearing conducted by Registrar Stoneham on 25 November 2011. 

15. Despite directions having been made now for a period of some 12 months or so, none of those directions have been complied with by the father.  The net result is that the last documentation received from the father was filed some 14 months ago:  a Notice of Address for Service on 1 October 2010 and an affidavit some four days later on 5 October 2010.

16. Mr Blayney indicates again from the bar table, that in conversations between he and the father, the father has indicated that he would seek to rely upon material previously filed by him in respect of interim proceedings, which, of course, took place some considerable time ago. 

17. Mr Blayney makes the obvious, but nevertheless correct point, that that material is now considerably aged, particularly when regard is had to the fact that these are parenting proceedings involving children who are yet relatively young, and whose changes in the level of their development can be seen to be significant within that timeframe.

18. Whatever might have been the father’s desires in that respect, he has been directed by orders of the court to do certain things, all of which are designed to have resolved the proceedings which he himself instituted in this court. He has failed to comply with each and every one of those directions. 

19. When the father did not appear at the directions hearing held by Registrar Stoneham on 25 November 2011, the registrar transferred the matter to my callover list.  At that time, the mother indicated a desire to have orders made in default of participation in the proceedings by the father.

20. Out of an abundance of caution, and despite the father’s failure to comply with earlier directions, I specifically directed, by orders made on 3 February 2012, the Independent Children’s Lawyer to undertake certain steps.  Those steps were designed to achieve two things:  the first was to make it clear to the father that he was to show cause why orders would not be made in default of his compliance with the earlier directions and his further participation in these proceedings;  the second was to bring to the attention of the court, and indeed, to the father, the specific opinions by the family report writer, Ms Q, and the reporting psychiatrist, Dr M, of the proposals put forward by the mother and which she would have made as orders by this court in default of the father’s appearance.

21. Mr Blayney did so, forwarding to the father on Monday 6 February 2012 via email a letter setting out all of the matters in respect of which those directions were given.  In that respect, copies of the orders made by me on that day, and the mother’s amended response, which set out the orders sought by her, were attached, and Mr Blayney made plain that I had asked for further opinions from Ms Q and Dr M. 

22. Mr Blayney’s correspondence also set out, as I had directed, that it was intended that the father show cause why orders ought not be made in the circumstances earlier referred to.  The father responded via email the same day.

23. There are a number of matters to note in respect of that response.  The first is that nowhere within the email forwarded by the father does he show cause, or attempt to show cause, why orders ought not be made in default of his participation in these proceedings or in default of his compliance with directions. 

24. Indeed, the email does not at all address the merits of the prospective orders being made, save that the father says at one point in the email:

    It would be fair to say that this ordeal is getting to me, and at times I am completely lost with the process, and it has been a very long process.  I am dealing not only with the legal issue of the children, but I am dealing with many other legal issues also.

    I probably do not sound like a great father prospect at present, but should I not at least be given a fair chance to present my case?

25. The father then goes on to deal with what he perceives, perhaps rightly, as being the iniquities involved in him not being able to avail himself of legal assistance.  He also makes reference to the fact that, at least as he alleges it, the mother receives a number of items of public assistance of one sort or another, and he asserts that he does not. 

26. The father complains about the alleged unfairness of this, but again, does not say anywhere within the material what he intends to do in respect of any further participation in the proceedings; he does not evidence any desire to further participate in the proceedings, save as to suggest that what he asserts is some form of application to Legal Aid being expedited so that he can “properly represent (himself) in court”.

27. Mr Linklater-Steele, who appears as counsel for the mother today, makes the point that nowhere in that document, nor otherwise in the approximately 12 months that directions have been outstanding in this matter, has the father ever advanced any orders which he would have the court make, save that his initial application indicates that the children should live with him, that there should be equal shared parental responsibility, and that there should be orders for time made as the court might itself determine.

28. Moreover, Mr Linklater-Steele makes the point that although the father has made allegations in respect of the mother, relating in particular to alleged drug use and the like, no specific evidence has been offered by the father which should cause this court to have pause in circumstances where, despite directions for him to do so, he has failed to participate in this process. 

29. It is an unfortunate fact of life – and, one might observe, unfortunately an increasingly common unfortunate fact of life – that parties are not afforded legal assistance. One of the results of that is that this court sees, very commonly, many people appearing for themselves.  Many of them might be said to be at a disadvantage as a result of their lack of representation. 

30. However, it is important to emphasise that, subject to those parties being given every opportunity to present, as best they can, their case, and to avail themselves of the resources of the court – including, in parenting cases, an opportunity to present their case, as it were, to reporting experts – lack of legal representation, or lack of legal assistance, does not provide an excuse for failing repeatedly to comply with directions of the court.

31. I repeat, very many parties who represent themselves, although they may be seen properly as being disadvantaged, nevertheless have no difficulty in complying with directions made by the court.  Indeed, it has been observed by me, and indeed by many other judges of this court, that sometimes the compliance with directions by self-represented parties is better than the compliance by legal practitioners. 

32. The father has, in my view, been afforded more than enough opportunities to put forward such case for parenting orders as he might properly desire.

33. True it is that he might be, as he alleges, disadvantaged by reason of lack of representation, but it is not a case where the father has complied with directions inadequately as a result of his lack of legal representation; rather, despite being given at least four opportunities to do so, he has failed completely to even outline the very basics of his case. 

34. As I have earlier indicated, Mr Blayney had forwarded to the father via email a copy of the mother’s amended response, which set out the orders sought by her. In accordance with directions made by me, Mr Blayney had asked each of Ms Q and Dr M specific questions directed towards ascertaining those experts’ opinions about the specific proposals put forward by the mother. 

35. As a result of those inquiries, the Independent Children’s Lawyer compiled minutes of order for which he would contend in these proceedings.  Subsequent to those being received by the mother, she has indicated her agreement to those orders. 

36. The father has not had notice of those specific orders. However, the orders sought by the Independent Children’s Lawyer, to which the mother has agreed, can, plainly, be seen as being, as it were, more advantageous to the father’s position than those sought by the mother, of which he does have notice. 

37. In the circumstances earlier referred to, it seems to me appropriate that I should make those orders if I consider them to be in the best interest of the children because, part and parcel of the obligations mandatorily imposed upon the court – for example, section 69ZN of the Act – include a mandatory obligation (expressed as the fifth principle) that “proceedings are to be conducted without undue delay and as with formality and legal technicality and form as possible”.

38. Irrespective of that specific mandatory obligation, and the other, broader obligations contained within that Division of the Act, it seems to me axiomatic that it is in the best interests of these children that these longstanding proceedings in relation to orders directly affecting them should be brought to an end as expeditiously and quickly as possible. 

39. In all of those circumstances, it seems to me entirely appropriate that I should proceed today to make orders in default of compliance with the directions made requiring the father to undertake certain steps so as to advance his case in this court  and in default of him showing cause in accordance with my order, made on 3 February 2012.

40. That being the case, the question for the court is whether the orders, as proposed by the Independent Children’s Lawyer and agreed to by the mother, can be seen to be in the best interests of these two children. 

41. As will be obvious from what I have already said, the court has had the benefit of receiving expert evidence now from two family consultants, Ms Q and Ms B, and further expert evidence from the child psychiatrist, Dr M.

42. I have paid particular regard to those reports in particular. I have also had regard to the matters raised by Mr Blayney, including the manner by which he has satisfied himself that concerns with respect to the mother’s care of the children as are raised by the father or otherwise evidenced in the material, have been addressed, both by the mother and in terms of the orders that the court will make.

43. I am satisfied that the orders proposed by the Independent Children’s Lawyer and agreed to by the mother are in the best interests of the children.

44. For those reasons I propose to make those orders on a final basis in default of appearance and participation in the proceedings by the father as being in the best interests of these children.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 17 February 2012.

Associate: 

Date:  20 March 2012