Timmons & Anor & Fielding

[2016] FamCA 777

FAMILY COURT OF AUSTRALIA

TIMMONS AND ANOR & FIELDING AND ORS [2016] FamCA 777

FAMILY LAW – CHILDREN – Parenting – Whether the Applicant foster parents should have equal shared parental responsibility of the child – Whether the child’s name should be changed – Where the child has been in the Applicants’ care for most of his life – Where the Applicants have demonstrated a willingness to facilitate time between the child and the maternal family – Where there were no appearances from the child’s biological family – Where orders made with the consent of the Applicants and the ICL.

Family Law Act 1975 (Cth)

FIRST APPLICANT: Mr Timmons

SECOND APPLICANT: Ms Timmons

FIRST RESPONDENT: Ms A Fielding

SECOND RESPONDENT: Mr Long

THIRD RESPONDENT: Ms B Fielding

INDEPENDENT CHILDREN’S LAWYER: Suzanne Jensen

FILE NUMBER: BRC 2356 of 2013

DATE DELIVERED: 13 September 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 12 September 2016

REPRESENTATION

THE FIRST APPLICANT: In Person

THE SECOND APPLICANT: In Person

THE FIRST RESPONDENT: No Appearance

THE SECOND RESPONDENT: No Appearance

THE THIRD RESPONDENT: No Appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms R. Lyons

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms S. Jensen
Legal Aid Queensland

Orders (Made 12 September 2016)

WITH THE CONSENT OF THE FIRST AND SECOND APPLICANTS AND THE INDEPENDENT CHILDREN’S LAWYER AND IN DEFAULT OF APPEARANCE OF ANY OF THE RESPONDENTS

IT IS ORDERED

1. That all previous Parenting Orders and any Parenting Plans in existence be discharged.

2. That the applicants, Ms Timmons and Mr Timmons, have, to the exclusion of all other persons, equal shared parental responsibility for all the “major long term issues” relating to the child, C born …, (“the child”) as that expression is defined in s 4 of the Family Law Act 1975, save for any further long term issue in respect of the child’s name.

3. That the name of the child be changed to C TIMMONS (with “Fielding” to be registered as and treated as another of the child’s middle names), and the applicants, Ms Timmons and Mr Timmons, shall be permitted to take steps to cause the child’s details recorded in the Queensland Register of Births, Deaths and Marriages, to be changed to reflect that as well as his details recorded in his school enrolment and other administrative records such as those held with Medicare, with there to be no further change to the child’s name without a further order of this Court.

4. That notwithstanding paragraph 2 hereof excluding parental authority in respect to any further long term issue around the child’s name from the equal shared parental responsibility conferred on the applicants, Ms Timmons and Mr Timmons, to be clear, neither the child’s biological mother or biological father shall retain any residual parental responsibility, including as to any issue around the child’s name, and any otherwise lawful requirement for the child’s biological mother and/or biological father to sign any document to give effect to the change of name of the child provided for in paragraph 3 of these orders is hereby dispensed with.

5. That the child shall live with the applicants, Ms Timmons and Mr Timmons.

6. That the child shall spend time with his biological mother, Ms Fielding, at all times as may be agreed between her and the applicants, Ms Timmons and Mr Timmons, with any such time to be supervised by one of the applicants provided however that any such time the child spends with his biological mother may become unsupervised on terms still required to be agreed as between the biological mother and the applicants in circumstances where the mother has:

   (a)       undertaken supervised random urine drug testing:

   (i)within 24 hours of a request from either of the applicants via email with the results of such drug testing to be provided to the applicants via email within a further 24 hours;

   (ii)no request for such random urine drug testing is to be made any more frequently than each four (4) week period;

   (iii)after the biological mother has provided three (3) consecutive clean urine drug tests, the frequency of requests for such random drug testing shall be no more than once in every six (6) week period;

   (iv)the cost of any random urine drug test undertaken by the biological mother shall be borne by her; 

   (b)       undertaken hair follicle drug testing:

   (i)as required by the applicants within seven (7) days of receiving a request via email from one of the applicants for such a test to be undertaken;

   (ii)the frequency with which such hair follicle drug testing may be requested by the applicants shall be no more than once in each six (6) month period;

   (iii)the cost of each such hair follicle drug test shall be borne by the applicants, but any cost of such testing borne by the applicants that is lost to the applicants as a result of pre-payment by them in circumstances where the biological mother does not attend and participate in the test within seven (7) days of the request to do so, shall be reimbursed to the applicants by the biological mother within three (3) months of the date of receipt by her of a request from the applicants for such reimbursement;

   (c)       undertaken personal counselling or therapy:

   (i)in respect of her drug abuse; in respect of drug abuse relapse prevention planning; in respect of the impacts of domestic violence upon victims of such violence and their children; and in respect of the need for an adult person to be living within a respectful relationship; with such counselling to be related particularly to the biological mother’s own personal history and circumstances;

   (ii)the mother should consult her general medical practitioner to obtain a Mental Health Care Plan to enable her to access such counselling or therapy if she is unable to otherwise afford to pay for it;

   (iii)the mother shall obtain and provide to the applicants a letter from her counsellor or therapist detailing her attendance upon the counsellor or therapist for such counselling or therapy, including confirmation from that counsellor or therapist that the mother has undertaken or been counselled about a drug abuse relapse prevention plan in addition to confirmation that the mother has gained an understanding of the issues sought to be addressed in the counselling;

   (d)       consulted with the child’s treating psychologist, Ms D:

   (i)not less frequently than one (1) time each three (3) months, commencing from the time when the biological mother again resumes spending supervised time with the child;

   (ii)such consultation with Ms D to focus upon the child’s progress in his treatment with Ms D and how the biological mother may assist him to rebuild his relationship with her, including in respect of the suggested implementation of any recommendations that Ms D makes to the biological mother in respect of the child’s incorporation in her family and household in terms of the recommencement of unsupervised time in her care;

   (iii)the cost of any such consultations the biological mother has with Ms D are to be borne by the mother;

   (e)Notified the applicants, Ms Timmons and Mr Timmons, within 24 hours of any of the following events:

   (i)The mother being charged with any criminal offence;

   (ii)The mother being a party to as an aggrieved person or a respondent person to any domestic violence proceedings commenced by or on her behalf or against her;

   (iii)The mother becoming aware of any further involvement by any state child welfare department in her life in respect of any children in her care at the time.

7. That the child shall spend time with the respondent biological maternal grandmother, Ms B Fielding, at all times and in all such circumstances as may be agreed between her and the applicants, Ms Timmons and Mr Timmons, with any such time to be supervised at all times by one of the two applicants.

8. That the child shall communicate with the biological mother and/or the biological maternal grandmother at any reasonable time by telephone or Skype when the biological mother or the biological maternal grandmother shall initiate such communication or at any other reasonable time when the child may request of the applicants that they assist him to initiate such communication with either his biological mother or his biological maternal grandmother.

9. That the child shall spend time with and communicate with his biological father, only as agreed between the child’s biological father and the applicants, Ms Timmons and Mr Timmons.

10. That the applicants, Ms Timmons and Mr Timmons, and the respondent biological mother and the respondent biological maternal grandmother shall ensure that each of them is kept informed of each of their current residential addresses; current email addresses; current Skype addresses; and current telephone numbers at which they can be contacted, and any changes to any of the details of any of those points of contact within 48 hours of any such change, with such notice of change to be given to each of the others in writing.

11. That any cards, letters, photographs and gifts sent to the child via the applicants by the child’s biological mother or biological maternal grandmother shall be passed to the child by the applicants.

12. That the child shall not be physically disciplined by any of the parties and each party shall use his and her best endeavours to ensure that the child is not physically disciplined by any other person.

13. That the child shall not be brought into contact with Mr Fielding.

14. That none of the parties shall be under the influence of illicit drugs at any point in time that the child is in his or her care.

15. That none of the parties shall denigrate any other party to or within the hearing or presence of the child.

16. That each party will use his and her best endeavours to ensure that the child is not brought into the presence of or within the hearing of any other person denigrating any of the parties.

17. That none of the parties will discuss these court proceedings with the child or with any other person whilst the child is within hearing or within their presence.

18. That these orders authorise the child’s biological mother to be able to obtain information from any school the child attends at her own cost in respect of the child’s academic, sporting and cultural development and activities, including any reports, photographs, certificates and awards relating to or obtained by the child issued by the school, and for this purpose the applicants are authorised to show a copy of these orders to the administration of any school the child attends.

19. That the applicants, Ms Timmons and Mr Timmons, shall advise the child’s biological mother in writing of any significant injury or illness suffered by the child from time to time within a reasonable period after he has suffered that injury or illness with such advice to include details as to the treatment he has obtained including the names and addresses of any medical or allied health professionals that have treated him in respect of such injury or illness and as to his recovery and prognosis.

20. That the Independent Children's Lawyer be discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Timmons and Anor & Fielding and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2356  of 2013

Mr Timmons

First Applicant

And

Ms Timmons

Second Applicant

And

Ms A Fielding

First Respondent

And

Mr Long

Second Respondent

And

Ms B Fielding

Third Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

1. Six year old C has been the subject of disputed parenting arrangements for much of his short life. On Monday 12 September, I made final parenting orders that provide for the child to continue to live with Ms and Mr Timmons who have cared for the child for most of his life and that confer equal shared parental responsibility on them to the exclusion of his biological parents or any other person.

2. The orders I made were with the consent of Ms and Mr Timmons and the Independent Children’s Lawyer who has been in these parenting proceedings for a long time. the child’s biological mother, his biological father and his biological maternal grandmother were all parties to the proceedings. None of them appeared at the start of the trial that was listed to start at 10.00 am on Monday 12 September. Satisfied, as I was, that the father had elected long ago to play no part in the proceedings and that the child’s biological mother and biological maternal grandmother knew the matter was listed for a five day trial before me, but had elected, for their own reasons, not to appear and participate in the trial, I made the orders I did in their absence. I considered those orders to be in the child’s best interests.

3. I told the Applicants and the ICL and counsel who appeared for her that I would publish some short reasons for the orders soon after making the orders. These are those reasons.

4. The child’s mother had a tumultuous childhood herself. Her father left her, her mother and brother when she was only two years old and she had no contact with him until her early adulthood. He had spent time in prison, more than once. Her mother formed a new relationship with and began living with Mr Fielding. He had four daughters who spent time with them from time to time. When the child’s mother was only 10 years old, her stepfather sexually abused her and she and her brother were placed into care, moving between numerous foster families. The step-father was charged with criminal offences for the abuse but the child’s mother withdrew her complaint for the sake of the family. At 14 years of age she was returned to the care of her mother who was still living with her step-father. She soon left home and began living around in different places. At 15, in a violent relationship, she fell pregnant and gave birth to the child at 16 years of age.

5. At the time of giving birth to the child, the child’s mother was living with a new partner, who was also violent. During that time, the child, as an infant, suffered non-accidental but unexplained fractures of his left arm and left ankle. the child’s mother denies to this day knowledge of how the child suffered those injuries, but says she believes her then partner was responsible for it. Child welfare authorities acted and took the child from his mother’s care. He was only several weeks old. He was placed in the care of his maternal grandmother and her husband but then, at the age of 10 weeks, he was placed in the foster care of the Applicants, Ms Timmons and her husband, Mr Timmons.

6. The child’s mother visited him regularly until she and her partner relocated to Melbourne in late 2010. She had another baby in May 2011, to her then partner, the man she believes harmed the child. She had no contact the child for about a year then, but started seeing him again in 2012. She had moved back to Queensland in 2013 and had separated from her second son’s father. the child was returned by welfare authorities to her care in April 2013, but against the wishes of the Timmonses. After that, the Timmonses applied to this Court for parenting orders. Queensland welfare authorities, who did not have any Children’s Court orders in place at the time, chose not to intervene in the proceedings and on 23 August 2013, Hogan J of this Court made interim parenting orders for the child to go back to live with the Timmons. Her Honour gave lengthy written reasons for that decision. Her Honour’s orders provided for the child to spend time with his biological mother all day every Saturday but not for any overnight stays.

7. The child has lived with the Timmonses ever since and the proceedings progressed towards trial with the child’s biological mother legally represented and maintaining the case that the child should be returned to live with her. the child’s biological maternal grandmother intervened and was legally represented and was also seeking parenting orders in her favour. Of course, an Independent Children’s Lawyer has been in the proceedings since Hogan J’s orders. the child’s biological father, although formally a respondent in the proceedings, has never taken any part in them and has sought no orders from the Court.

8. A very experienced, senior Brisbane social worker and family report writer, Ms E, was engaged to see the parties and write a report for the Court. Ms E wrote a report in early 2015 and a second, updating report last month. Her reports are comprehensive and considered. I have absolutely no reason not to accept the truth of the facts Ms E outlined in those reports and I unequivocally accept the opinions she has expressed.

9. At the conclusion of her first report, Ms E recommended that the parenting arrangements put in place by Hogan J’s August 2013 orders remain in place.

10. Earlier this year, when the matter was before me on an interim basis, the Applicants, the biological mother and the biological maternal grandmother were all legally represented and informed the Court of the parameters of the dispute then still existing. I was informed that the matter would take five days and would be seriously contested. The mother was to be represented by a very senior Brisbane Queen’s Counsel and the Applicants were already represented by a very experienced junior barrister who specialises in family law. I listed the matter then for the five day trial scheduled to commence on Monday morning.

11. By the time the trial was to commence, Ms E’s second family report had issued. In that report, Ms E acknowledges that the child’s mother has again retreated from involvement in the proceedings, apparently having gone through a number of bad relationships again over the last couple of years and reportedly again descending into drug abuse in that time. the child’s mother, without notice of her intentions, did not turn up and attend interviews Ms E had scheduled in the course of preparing her updating report.

12. The child’s biological maternal grandmother had turned up for her interview with Ms E. She had been having one visit of one hour per month with the child, supervised by Ms Timmons. She maintained that she was seeking parenting orders that the child live with her or at least spend more unsupervised time with her. Ms E respectfully presented insights into the personality and attitude of the child’s biological maternal grandmother in her report that did not present the child’s maternal grandmother’s position in a very good light and, ultimately, Ms E recommended that the child spend no more than one hour per month with his maternal grandmother, supervised by Ms or Mr Timmons at a park. Ms E acknowledged information that she was aware of that the child was still struggling to adjust in his first year at school and expressed the opinion that it would not be in the child’s best interests to have to spend time with his maternal grandmother at a contact centre.

13. It appears that following receipt of that updated family report and the processing of its content, even the child’s biological maternal grandmother and her solicitors reconsidered her position. Those solicitors filed a Notice of Ceasing to Act for the maternal grandmother last week and the maternal grandmother, like the mother, did not come to Court for the trial, choosing to play no further part in the matter and not to ask the Court for any parenting orders in her favour.

1. The Applicants appeared without legal representation. The Independent Children’s Lawyer appeared with counsel. The Applicants asked for the orders that they had set out in their Case Information Document recently filed, a few of which counsel for the ICL indicated were opposed by the ICL. Counsel for the ICL handed the Court a draft of the orders that the ICL sought. There was a great deal of common ground between the Applicants and the ICL, so I told them that I would stand the matter down so that they could discuss their positions and determine if they could reach agreement and put a common position to me.

2. After about an hour, I was told that the Applicants and the ICL had reached a common position and I was given a fresh draft of terms of proposed parenting orders that they would consent to the Court making. Having read those and having discussed them with the Applicants and counsel for the ICL, I proposed orders that were in substance the same as those they had reached agreement upon but were in form a little different. The differences principally reflected my own preferences for specific wording to give effect to particular substance that was intended rather than the particular wording initially proposed by the Applicants and the ICL. After I read out the orders I proposed to make, the Applicants and counsel for the ICL told me that they consented to the orders being made in those proposed terms, so I made them. Those orders are as set out at the commencement of these written reasons.

3. I was quite satisfied that the parenting orders I made were in the child’s best interests. They now provide the child and the Timmonses with the certainty they need to continue on with the day to day care of the child so that developmental difficulties he has may be addressed and dealt with as favourably as possible. I was completely satisfied that the Timmonses are doing a very good job of caring for the child and that they are bonded and attached as parents and child, an attachment I am satisfied the child has never had with his mother. Indeed, the child’s biological mother has made no effort to see the child since Christmas Eve last year, nor to speak with him at all since January this year. That was after her Saturday unsupervised time with the child ceased in April 2015, when the maternal grandmother commendably reported that the child’s mother was again abusing very dangerous illicit drugs, and after she had only been having sporadic, short, supervised periods of time with him for the balance of 2015.

4. The Timmonses have throughout these proceedings continued to live in the same South-East Queensland location. They live in an eight bedroom home on semi-rural land with their three biological children aged 15, 11 and 9 (two boys and a girl) as well as another boy and girl 10 and 9 year old sibling set, another 13 year old girl and another 5 year old boy who have been placed in their foster care. And, of course, there is the child to take the number of children they care for to eight. Living in their own home at the same property are Mr Timmons’s parents.

5. The Timmonses are in good health. Mr Timmons has a good management position with a local business and works five days per week including on Saturdays. Ms Timmons does some voluntary work but is principally available most of the time to care for the eight children, including by going and spending a lot of time at their schools. Mr Timmons’s father is retired and his mother is still in local employment.

6. Ms E reported extremely positively about the Timmonses and their relationships and attachment with the child.  She reported on her contact with the child’s teacher and the positive reporting by the teacher of Ms Timmons’s serious voluntary commitment to helping out with managing and educating the child in his class of twenty-two students in circumstances where he has some serious developmental difficulties. Ms E reported very positively of her observations during a home visit to the Timmonses’ home where she observed the child being a robust, happy, reasonably normal little boy who is growing up in a well-managed household that cares for eight children. Her reporting of her observations compared markedly to her observations of what was happening in the child’s mother’s household when she did a visit there to observe her parenting her two boys.

7. The child’s mother is a young woman, still only 22 years of age, who has, sadly, led and still appears to lead a very troubled life. Even her involvement in these proceedings in which the current and future living and parenting arrangements for her little boy have always been the central issue, has not caused her to refocus her life around the importance of presenting as a stable, secure and capable parent. She has not been able to achieve that and has, apparently, given up on trying to achieve it at this point in time. It is hoped that for her sake and for the child’s sake and for her other son’s sake that she is able to address all of the concerns that prevent the child from having a meaningful relationship with her at this point in their lives as quickly as possible so that she can again begin to play a meaningful role in the child’s life.

8. Having regard to all of the evidence, I am satisfied that parental responsibility for the child should rest solely in the Timmonses on an equal shared basis, requiring them to discuss and agree upon any decisions that have to be taken in respect of all the major long-term issues in the child’s life, (as those issues are defined in s 4 of the Family Law Act 1975 (Cth)). I made a specific order about the child’s name that I also considered to be in his best interests at this stage in his life, so I excluded from the scope of the parental authority to be exercised by the Timmonses any authority in respect of further decisions about his name. Having done that though, I expressly excluded the child’s biological parents from having any residual parental authority over any issue at all.

9. I made an order permitting the Timmonses to change the child’s name from C to C Timmons, with Fielding to be one of his middle names and for them to cause such change to be reflected in the details recorded for the child in the Queensland Register of Births, Deaths and Marriages so that it appears on his Birth Certificate. I am aware that the child’s biological mother did not want that to happen, but in the absence of her taking part in the case and advancing her reasons for that opposition, I was satisfied that the agreement between the Timmonses and the ICL that the child’s name should be changed to represent the reality of his current family circumstances whilst retaining his birth surname as part of his name as he grows, is in his best interests.

10. The Timmonses’ approach to these proceedings and the orders that I should make caused me to be satisfied that they have a good appreciation of the need to encourage and facilitate Timmonses’ relationship with his biological mother and his biological maternal grandmother for his emotional wellbeing and development, in circumstances where those two women can satisfy the Timmonses that the child’s physical and emotional health will not be compromised. I gained no sense that the Timmonses would deal with any efforts by the child’s biological mother or biological maternal grandmother to have a relationship with the child other than in an appropriate, child-focused manner. Accordingly, I made the orders that I did about the time that the child might spend with his biological mother and biological maternal grandmother and also about the communication that he may have with each of them.

11. Other orders that I made entitle the mother to information and documents about the child from any school he attends and for the Timmonses to inform the school of that and also for them to keep the mother informed of any significant injury or illness that the child might suffer from in the future, as well as details of any treatment he obtains and his prognosis. Another order provides for the Timmonses and the mother and the maternal grandmother to keep each other informed of point of contact details and any changes to any of those in a timely fashion. This is to facilitate ease of ongoing communication that is provided for in the orders that I consider in the child’s best interests.

12. Satisfied that the child’s best chance to grow and develop into a happy and more emotionally secure young man is to continue living with the Timmonses and to continue receiving therapeutic counselling from the psychologist that the Timmonses have been taking him to for several years now, I made all of the orders that I did.   

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 13 September 2016.

Associate: 

Date:  13 September 2016