Vardon and Vardon

[2012] FamCA 562

FAMILY COURT OF AUSTRALIA

VARDON & VARDON [2012] FamCA 562

FAMILY LAW – CHILDREN – where the mother has significant mental health and substance abuse issues – where the children are presently subject to an order for their protection made under the relevant State welfare legislation – where the father seeks orders allowing the children to live with him in the United Arab Emirates – where the Independent Children’s Lawyer agrees to the orders sought by the father – where the Department of Communities, Child Safety and Disability Services intervened in the proceedings and indicated it supported the position of the Independent Children’s Lawyer – where orders made placing the children into the care of the father, giving the father sole parental responsibility for the children and allowing the children to travel to the United Arab Emirates – where such orders are to take effect upon the cessation of the order under the State welfare legislation.

Family Law Act 1975 (Cth)

APPLICANT: Mr Vardon

RESPONDENT: Ms Vardon

INTERVENOR: Director-General, Department of Communities, Child Safety and Disability Services

INDEPENDENT CHILDREN’S LAWYER: Berck Solicitors

FILE NUMBER: BRC 2445 of 2009

DATE DELIVERED: 9 July 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 9 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Carlton

SOLICITOR FOR THE APPLICANT: Sarah Cleeland Family Lawyers

THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Berck of Berck Solicitors

COUNSEL FOR THE INTERVENER: Ms Pendergast

SOLICITOR FOR THE INTERVENER: Crown Law, Brisbane

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1.   Upon cessation of the order made under a State Welfare Law currently applicable in respect of the children named O born … January 2003 and H born … December 2003, (“the children”) the following orders shall take effect until further order:

a.   The father have the sole parental responsibility for the said children.

b.   That the children O born … January 2003 and H born ^… December 2003 live with the father.

c.   That the father be at liberty to make all such arrangements as are necessary for the children to reside with the father in the United Arab Emirates.

Time with the Mother

d.   On the proviso that:

(i)the father bear the sole expense of the children’s return travel to and from Australia in order to facilitate time; and

(ii)that all time spent between the children and the mother be supervised by a person/persons agreed to by the father and the Independent Children’s Lawyer; and failing agreement such time to occur at a contact centre.

(iii)the mother shall be responsible for arranging for and bearing the cost of the supervision of the children and shall notify the father and the Independent Children’s Lawyer no later than 45 days prior to the commencement of time of:

(a)  the proposed supervisor/supervisors including their names, residential address and contact number; and

(b)  the date/time for the children’s time with the mother to take place. the children shall spend time with the mother in Australia at all times as may be agreed between the parties and in particular;

(iv)For two weeks during the United Arab Emirates school holidays in December 2012;

(v)For one week during the United Arab Emirates April 2013 school holidays;

(vi)For two weeks during the United Arab Emirates June/July 2012 school holidays.

e.    For the purposes of the children spending time with the mother in accordance with these orders, the Mother be responsible for arranging and bearing the costs of any accommodation and supervision whilst the children are in Australia, and shall provide the father and the Independent Children’s Lawyer with written confirmation of the arrangements 45 days before the time is to occur, and any such arrangements are to be agreed to by the Father and the Independent Children’s Lawyer.

Telephone/Skype Communication

f.That the mother be at liberty to telephone the children and/or communicate with the children via Skype on any given day between 4.00pm and 5.30pm the United Arab Emirates time.

Passports

g. That in the event the father requires a passport in order to facilitate the international travel of the two children, the Registrar of the Family Court of Australia at Brisbane be appointed to execute the applications on behalf of the Mother upon the written request of the father to do so.

IT IS FURTHER ORDERED THAT

2.   The Court requests that the Australian Federal Police remove the names O born … January 2003 and H born … December 2003 from the Airport Watch List at all points of international arrivals and departures in Australia.

3.   The Department of Communities, Child Safety and Disability Services is granted leave to withdraw as an intervener.

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.

IT IS DIRECTED THAT

5.   The matter be listed for further directions before a Registrar on a date to be advised but not less than 3 months from today.

6.   The orders in this matter be sent to the Maternal Grandmother, Ms V of …, Queensland.

NOTATION:

(a)It is anticipated and hope that the order made pursuant to a child welfare law will cease to have operation and effect as and from the hearing on 11 July 2012.

(b)The father acknowledges that the children have a relationship with the maternal grandmother and maternal grandfather.

(c)Neither the maternal grandmother nor the maternal grandfather have intervened in these proceedings however the father will use his best endeavours to facilitate and encourage a relationship between the children and their maternal grandparents through telephone, Skype and physical contact if such can be reasonably arranged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vardon & Vardon 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 2445 of 2009

Mr Vardon

Applicant

And

Ms Vardon

Respondent

And

DIRECTOR-GENERAL, Department of Communities, Child Safety and Disability Services

Intervener

EX TEMPORE

REASONS FOR JUDGMENT

1. The father of O, born in January 2003, and H, born in December 2003 (“the children”), seeks parenting orders from this Court, the effect of which is that they be permitted to live with him, and particularly that they do so in United Arab Emirates.  Orders that might be seen as consequential in relation to those orders are also sought in respect of parental responsibility. 

2. These proceedings involve an Independent Children’s Lawyer (“ICL”).  Pursuant to an order earlier made, the Department of Communities, Child Safety, and Disability Services (“the Department”) has intervened and the Court expresses its gratitude for them doing this Court the courtesy of appearing this morning. 

3. The father, the ICL and the Department, as I shall call it, are at one in terms of the orders which they contend the Court should make.  The mother was present in the precincts of Court this morning and during that time had, I am told, discussions with the ICL and the solicitor representing the Department. 

4. I am satisfied that she has been served with the material upon which the father and the ICL rely, and that she is aware of the nature and effect of the orders sought by the other three parties to which I have referred.  In light of the position of those three parties, these reasons given in the context of a judicial duty list can be brief. 

5. I have had regard to the material filed, in particular, by the ICL from Dr C.  The most recent report from Dr C is consequent upon an earlier report done by him and a report by Mr W, who is a psychologist. 

6. Dr C has commented upon the fact that when Mr W saw the mother:

   He was very concerned about her and it would appear likely that this lady’s illness had been brewing over a period of time.

7. It is not necessary within the confines of these short reasons to canvas the mother’s difficulties at length.  Suffice to say, most relevantly, that she was admitted to B Hospital’s mental health service on 3 September 2011 and released under a community treatment plan on 9 September 2011.  She was subsequently admitted for a further 13 day admission to that same hospital between 8 November and 21 November. 

8. Upon her release, the hospital made a notification to the Department and the community treatment order was changed to an involuntary patient order.  The material founding the latter application includes the following quotes:

   Deteriorating mental state.  Concerns for her safety, her children’s safety and that of others.  Family and neighbours express concerns, concerns she may not be taking her prescribed mediation.

9. Subsequent to that note, the hospital made a home visit on 29 November 2011.  The notes from the hospital record on that date their observations that the mother was:

   …paranoid and suspicious of everyone around her.  She was labile in mood and her speech was erratic.  [The mother] was easily agitated.  Depending on the topic of conversation, her speech was pressured and tone was up and down, depending on her level of agitation.  [The mother] was thought disordered and delusional.  Her insight was impaired and her judgment was poor. 

10. Subsequent to that, other matters are referred to in the hospital case notes, and in particular there were concerns about whether the mother was taking the medication that she was prescribed. 

11. Other material obtained pursuant to subpoena from the Queensland Police Service indicates that, perhaps unsurprisingly, the mother’s mental health and drug issues (which might be seen to be related to her mental health), have been the subject of investigation and charges by that service. 

12. Again, unsurprisingly it might be thought, the Department has had extensive involvement with the mother and the children.  As a result of the notification made by the hospital on 22 November 2011, the mother was interviewed by officers from the Department.  The notes show that the mother had been hearing the children calling out for her.  Disturbingly, the children informed the relevant officers that “the mother was walking around the streets, telling the children she was looking for koalas, but the children appear to know what is actually going on”.  H has told the Department that his mother is crazy.  The Departmental officers also noticed that she was “disorganised”.

13. But, two urine screens done during her prior admissions indicated that she was clear of drugs.  The documents obtained by the ICL, pursuant to subpoena, indicate a number of very disturbing matters, which include the assertions that the children have been witness to significant incidents of family violence, which have included seeing their mother assaulted and a male person wounded with a drill. 

14. There is also suggestion within those documents that the mother has been using “ice” and has been doing so at the children’s home, and has been engaging in prostitution from that place. 

15. Against that background, then, Ms Pendergast, who appears on behalf of the Department this morning, informs the Court that although the Department is not in a position to formally consent to the orders sought, the Department supports orders by the ICL placing the children into the care of their father and permitting them to travel with him to the United Arab Emirates and for him to have parental responsibility commencing upon the cessation of what I will call a child protection order made pursuant to State legislation. 

16. In that respect, Ms Pendergast tells the Court that, on Wednesday of next week, the Department expects to be in a position to approach the State Court with a view to discharging that order, so as to give full force and effect to an order by this Court, expressed in the terms to which I have just referred. 

17. The draft orders proposed by all three parties refer by way of notation to the fact that the father acknowledges that the children have a relationship with the maternal grandmother and maternal grandfather and the orders provide, again by way of notation, that:

    Neither the maternal grandmother, nor the maternal grandfather has intervened in these proceedings.  However, the father would use his best endeavours to facilitate and encourage a relationship between the children and their maternal grandparents through telephone, Skype and personal contact if such can be reasonably arranged.

18. In that respect, the father deposes in his affidavit material to undertaking training within the aviation industry, which such training, he says, needs to be completed in the United Arab Emirates.  He deposes to the fact that he does not intend to reside permanently in the United Arab Emirates, but to return to Australia when his period of training is properly complete. 

19. The father is now married, having married Ms M in early 2011.  He deposes in that affidavit to the arrangements proposed by he and his wife with respect to the children’s living circumstances and their proposed education arrangements in the United Arab Emirates. 

20. In all of the sad circumstances of this case, I am persuaded that it is in the best interests of O and H to live with their father in the United Arab Emirates pursuant to orders, the terms of which are contained in minutes submitted on behalf of the ICL and agreed to, as I have said, by both the father and, in the limited sense to which I have referred, by the Department. 

21. The orders, then, will be expressed to take account of the provisions of s 69ZW of the Family Law Act 1975 (Cth) so as to commence upon the cessation of the order made pursuant to state welfare law.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 9 July 2012.

Associate: 

Date:  20 July 2012