Sturges and Gisby

[2013] FamCA 194

FAMILY COURT OF AUSTRALIA

STURGES & GISBY [2013] FamCA 194

FAMILY LAW – CHILDREN – With whom children spend time – Undefended Hearing – Where there is a history of family violence – Where there has been no time or communication between the children and the Father since August 2011 – Where the Father is in gaol and has an extensive criminal history – Mother to have sole parental responsibility – Children to live with the Mother

Family Law Act 1975 (Cth)

Allesch v Maunz (2000) 26 Fam LR 237

APPLICANT: Ms Sturges

RESPONDENT: Mr Gisby

INDEPENDENT CHILDREN’S LAWYER: Ms Jennifer Boulton

FILE NUMBER: BRC 9812 of 2009

DATE DELIVERED: 25 March 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 25 March 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Legal Aid Queensland

FOR THE RESPONDENT: In person by telephone

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Jennifer Boulton Solicitor

Orders

It is ordered that

1. All previous orders, parenting plans be discharged.

2. The Mother have sole parental responsibility for the children, B born … November 2003 and C born … January 2006.

3. The children shall live with the mother.

4. The Independent Children’s Lawyer be discharged.

5. Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders 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 Sturges & Gisby 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 BRISBANE

FILE NUMBER: BRC 9812 of 2009

Ms Sturges

Applicant

And

Mr Gisby

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These are parenting proceedings concerning two children, namely B born in November 2003 who is currently nine years of age, and C born in January 2006 who is currently seven years of age.  The Applicant is the children’s Mother Ms Sturges (“the Mother”) and the Respondent is Mr Gisby, the children’s Father (“the Father”).  Ms Boulton is the Independent Children’s Lawyer appointed to represent the children’s interests in the proceedings.

2. The parties commenced a relationship on or about 10 February 2001 and separated on a final basis on 25 August 2009.  At the time of separation, B was not yet six years of age and C was three and a half.  The parents never married. 

3. Subsequent to their separation, the parties entered into parenting arrangements reflected in consent orders which were made by way of final orders on 5 November 2009.  The orders made dealt with property and financial matters as well as a separate set of consent orders in relation to parenting arrangements for B and C.  In short, the consent orders provided for the parents to have equal shared parental responsibility for the children and that the children would mainly live with their Mother and have time with the Father on a regular basis including weekly and alternate weekends and holiday time.

4. Arrangements proceeded pursuant to those orders up until about August 2011 when the Father came to the attention of the Department of Communities, Child Safety (“the Department”) in relation to then recent charges in relation to the Father allegedly committing sexual offences against other children.  By a letter dated 7 September 2011, which has been admitted and marked as an exhibit in the proceedings before me, the Department agitated for the Father’s time and communication with B and C to be restricted “given the seriousness of allegations” and the Department proposed alternative arrangements being entered into whereby the Father’s contact would be supervised either by departmental workers or a person approved of by the Department.  In the result, the Father did not spend any time with the children following the letter from the Department dated 7 September 2011. 

5. The Mother instituted proceedings by the filing of an Initiating Application and affidavit in the Federal Magistrates Court on 31 October 2011.  The Initiating Application filed by the Mother came before Spelleken FM on 21 November 2011.  Spelleken FM then made an order on an urgent basis for the children’s interests to be separately represented in the proceedings.  The Respondent Father attended the appearance on 21 November 2011.  He had been personally served with a copy of the Mother’s Application and attended at the Court on that date.  On that date, Spelleken FM issued a number of subpoenas and on the return date of the subpoenas, 28 November 2011, when there was then no appearance by the Father but there was available to her Honour the subpoenaed material amongst other material, Spelleken FM suspended the consent order earlier made by the parties as referred to.

6. The material relied upon by the Mother before me includes her affidavit filed on 30 January 2013.  I accept the Mother’s evidence that she had cause to apply for a domestic violence order in November 2009 against the Father and that the Father’s criminal history includes charges and convictions for breaching the domestic violence order that was made in response to that application.  The Mother has detailed, in her affidavit filed in these proceedings on 31 October 2011, the information she obtained from the Queensland Police concerning the investigation made into the Father’s conduct regarding offences involving two young girls. 

7. In the result concerning those matters and others, on 17 October 2012 the Father was sentenced to a period of imprisonment for four and a half years, suspended after 18 months.  The Mother details, in her 31 October 2011 affidavit at paragraphs 13 to 30 thereof, the details in relation to those offences.  I need not restate them here suffice to note that they are extremely serious because they include offences in relation to children.  I accept the Mother’s evidence.

8. The Father has an extensive criminal history dating back to 1988.  Apart from numerous traffic offences and assaulting police, he has other offences of violence, false pretences, breaches of domestic violence orders, breaches of parole and he is currently facing further charges including an alleged assault of an elderly man.  His criminal history also includes breaches of bail conditions. 

9. For the purpose of these proceedings, the Respondent Father has essentially not engaged in the process, despite ample opportunity to so do.  I have noted that the Father appeared on the initial return date in the Federal Magistrates Court on 21 November 2011 but as the order of 28 November 2011 records there was no appearance on that date by the Respondent Father. 

10. Following the transfer of the proceedings from the Federal Magistrates Court to this Court, Registrar Stoneham made orders on 20 November 2012 which included orders providing for the filing of material including applications and responses and for the parties to file their trial affidavits and other information for the purpose of a trial.

11. It would seem, as part of those directions, the Registrar listed the matter for a compliance hearing in February of this year, namely, 1 February 2013.  The Father attended by telephone on that occasion, albeit that he had not complied with the various orders and directions.  The Father was aware of the matter being listed for a callover today given that the order of 20 November 2012 by Registrar Stoneham provided for that process.  There is a notation to the Registrar’s order which appears in subparagraph (d) which is in terms that “pursuant to Rule 11.02(2) should a party fail to comply with an order, the Mother may proceed on an undefended basis and default orders made”.

12. Plainly, the Father has been on notice that non-compliance with orders may lead to the Mother proceeding on an undefended basis.  In terms of the Father’s compliance or lack of compliance, I note that the Court, on 13 February 2013, wrote to the Father setting out the history of the matter and the fact of service of the original proceedings and records, for example, in paragraph 4:

    On each further court date you have failed to appear nor have you been available at your contact telephone number, as recorded, when the court has endeavoured to contact you to appear.

13. The letter further records the Father’s failure to file any documents in response as required by the rules and as ordered by the Court.  That letter contained a recommendation to the Father, amongst other things, that he seek legal advice and it also records the listing of the proceedings for further direction on 8 March 2012 and again records that the matter would proceed if the Father failed to attend unless other arrangements were agreed in accord with the orders made on 1 February 2013. 

14. The Father responded to the correspondence just referred to by an undated letter, marked as exhibit 3 in these proceedings, agitating that he was unaware of the proceedings since he had been incarcerated as of 5 August 2012.  That cannot be accurate, given that the Father was plainly aware of the proceedings being on foot, having at least appeared on 21 November 2011 when the matters came before Spelleken FM.  He was not sentenced until 17 October 2012 and there is no satisfactory explanation provided by the Father of his failure to take steps in the proceedings between November 2011 and October 2012 when he knew the proceedings were on foot.

15. The Father appeared before me briefly by telephone for the callover of the proceedings this morning and indicated by telephone that he had not told either of the other parties, namely the Mother and the Independent Children’s Lawyer, of the fact of his incarceration at any time following 17 October 2012. 

16. The Father agitated in the correspondence to which I have referred, as well as in his brief appearance by telephone before me this morning, that the children should remain living with the Mother but that nothing else should happen until he is released from gaol on 16 April 2014.  Whilst in the course of debating his position about that, the Father elected to terminate the telephone communication between the Court and himself.  I had my court officer again call the Father to gain his participation, but the Father informed the court via my court officer that he did not wish to participate further in the proceedings. 

17. This would appear to be something of a theme in terms of the Father’s conduct, given that I note that the letter from the Department to him dated 7 September 2011 records the Father terminating the Department’s telephone call with him before arrangements could then be made to interview him, and likewise there are other instances where the Father has terminated contact with Registrars of this Court, apparently when he perceived things were not going entirely his way. 

18. From the point of view of the history of the matter, it is significant that there has been no time or communication between the children and the Father since August 2011.  As the Mother explains in her material, she was initially keen for time and communication of some kind to be maintained between the Father and the children, but as she learned more of the Father’s history from subpoenaed material provided to the Court, a history of which she wasn’t earlier aware, the Mother developed increasing concerns as to the health and wellbeing and safety of the children the subject of these proceedings as regards time and communication with the Father. 

19. I accept the Mother’s evidence that after 28 November 2011 and the orders made by Spelleken FM, the Father attended at the Mother’s workplace, causing a scene during which he verbally abused staff and made threats directed to the Mother, requiring the police to be called. 

20. As earlier noted on 17 October 2012, the Father was sentenced in the District Court at Brisbane for a number of criminal offences, including one charge of maintaining a sexual relationship with a minor.  There were also convictions for two charges of unlawful carnal knowledge of a minor and breaches of bail conditions were left outstanding.  There is also, on the material filed by the Mother, the question of further outstanding charges in the case of the Father. 

21. Whilst it may be true that the Father is released after he has served 18 months from 17 October 2012, such that it is accurate, as he asserts, that he will be released in April 2014, there is no evidentiary basis for me to be comfortably satisfied that that is so, given the evidence concerning other charges. 

22. Of particular concern is the evidence of the Mother, which I accept, that since these proceedings have been on foot B has reported to the Mother that on one occasion the Father threw him against a wall and gave him a blood nose.  The Mother did ask B at the time why B had not earlier told her about the incident, and B’s response was to the effect that he didn’t want his Father to go to gaol.  B has also since disclosed to the Mother that he has witnessed the Father hit a dog on the head with a hammer. 

23. When regard is had to the extent of the Father’s criminal history and its nature, I accept the Mother’s evidence as to the genuineness of her holding serious concerns regarding the children being exposed to the Father.  I also accept her evidence that the Father has effectively hidden from her much of his history, particularly concerning his criminal history. 

24. It seems to me that unless and until the Father were to actively participate in parenting proceedings and was able to satisfy not only the Mother but the Court of the concerns the Court can legitimately have with the Father then, just as was the position with Spelleken FM, no Court exercising jurisdiction under Part VII of the Family Law Act 1975 (Cth) (“the Act”) would be minded to make parenting orders that would see the children spending time or communicating with the Father.

25. The evidence of the Mother, which I accept, satisfies me that despite all I have said the children seem to be progressing well at the D School and the Mother has exhibited to her material recent school reports.  I accept that in November 2011 the Mother arranged for the children to attend counselling.  I also note that the Mother has had to deal with an unfortunate health condition in that in 2011 she was diagnosed with cancer and in 2012 has undertaken chemotherapy.  The Mother has also attended counselling for the purpose of addressing the stress she has experienced, vis-à-vis both her condition and these proceedings. 

26. As has been emphasised in many cases, including by Kirby J in Allesch v Maunz (2000) 26 Fam LR 237, it is a fundamental principle of procedural fairness and natural justice that a party against whom orders are sought or whom may be affected by orders sought have the opportunity to be heard in respect of those orders. What his Honour emphasised however was the opportunity to be heard, not that it extends to an inability of a court to make orders unless a party is heard.

27. I am satisfied in this case that the Father has historically had ample opportunity to be heard and elects today, when it suits him, to terminate communication with the Court rather than pursuing matters on their merits.  He has had ample opportunity to file material and has chosen not to take those opportunities.  He has had ample opportunity to attend court events at least by telephone, and as exemplified by his conduct today has taken the approach of terminating the communication.

28. I am therefore satisfied that the Father has had an opportunity to be heard and that it is legitimate for the Court to proceed to hear and determine the proceedings on an undefended basis. 

29. I am satisfied on the Mother’s evidence and in relation to the making of domestic violence orders that there are reasonable grounds to believe that the Father has engaged in family violence within the meaning of section 61DA(2) of the Act. I am therefore satisfied that the presumption expressed in section 61DA(1) does not apply in these proceedings. I am satisfied on the evidence of the Mother and as referred to that there is a need to protect the children from potential physical or psychological harm or from being subjected to abuse or family violence if the Father was in a position to have time and communication with them.

30. There is no clear evidence before me as to any views expressed by either child.  However I note that, as earlier referred to, paragraph 37 of the Mother’s affidavit filed 30 January 2013 records reports made to her by B as I have recounted them.  It would seem a reasonable inference to draw that B himself has concerns about the Father given the reports he then made to his Mother and his explanation for not earlier telling the Mother about those things.  That is, B has elected to tell his Mother about those things, albeit that from his perception that may well mean his Father going to gaol.  It is in that context that I take into account that there is no evidence of any firm views by either child that they wish to have time and communication with their Father.

31. It is plain on the evidence that the Father has failed to take opportunities to participate in spending time with and communicating with the children or in participating in making decisions about them.  The letter from the Department earlier referred to encouraged the proposition that the Father would continue to have time and communication with the children, albeit in the context of supervision.  The Father did not follow that path.  That is, he suspended all time and communication, by choice, with the children, apparently not being prepared in the circumstances that confronted all concerned to maintain his relationship with the children in the face of the very serious criminal charges he was then facing and was subsequently convicted of.

32. I am satisfied that the Mother has fulfilled her obligations to maintain the children, and obviously has done so without assistance of the Father.  If I make the orders sought by the Mother it seems to me that there is no relevant change in the children’s circumstances in terms of any separation from their Father.  The fact is the Father has not had time and communication with the children, by his choice, since August 2011.  The relevant practical difficulty and expense of any face to face time between the children and the Father would essentially mean the Mother having to take the children to the E Correctional Centre for the purpose of time and communication.

33. I am satisfied that the Mother has the capacity to provide the emotional and intellectual needs of both children.  Obviously, the Father’s capacity to so do is extinguished whilst he remains incarcerated, but in any event, is in significant question given his past history and the fact that he chose to terminate his time and communication with the children.  I am satisfied that the Father demonstrates a questionable attitude to the subject children and to the responsibilities of parenthood.  As earlier noted, he has elected to terminate his time and communication notwithstanding the invitations of the Department.  I am satisfied, as already noted, that the Mother has demonstrated a capable attitude in terms of the responsibilities of parenthood she has demonstrated in that context.

34. As earlier noted, I have found this is a case involving family violence and I accept the evidence of the Mother concerning the domestic violence order she sought and obtained and I note with concern the report of B concerning he himself being exposed to at least an incident of family violence involving an assault upon him and an incident of violence relating to the striking of a dog with a hammer by the Father.

35. I am satisfied in this case that it will be preferable to make an order which is least likely to lead to the institution of further proceedings in relation to both children in terms of the orders sought by the Mother.  It seems to me that if in future the Father is to agitate for time and communication with the children, he will need to satisfy a Court of a material change in his circumstances from those currently.  Those changes will include not only his release from imprisonment, but changes in terms of the path of conduct reflected in his criminal history.

1. I am satisfied on the history of this matter, and given the findings I have made with respect to the section 60CC considerations, that it is not in the children’s best interests for their parents to have equal shared parental responsibility.  I am satisfied it is in their best interests for the Mother to have sole parental responsibility to make both the short-term and long-term decisions for the children. 

2. I, therefore, for these reasons, make final orders consistent with the terms of the orders contained in the Mother’s Amended Initiating Application filed 6 February 2013 and am fortified in that conclusion that those orders are in the children’s best interests given that the making of those orders is supported by the Independent Children’s Lawyer engaged to represent the children’s interests in these proceedings.  I order accordingly.  

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 25 March 2013.

Associate:

Date:  25 March 2013