Walters & Mossimo (No 2)

[2015] FamCA 556

FAMILY COURT OF AUSTRALIA

WALTERS & MOSSIMO (NO 2) [2015] FamCA 556

FAMILY LAW – PRACTICE & PROCEDURE – Where neither party has taken any step in the proceedings for more than 12 months – Where the Department of Family and Community Services were removed as a party to the proceedings in December 2014 as there has been no contact with the father and child since 2011 – Where the court wrote to the parties advising that if no step was taken by them all outstanding applications before the court would be dismissed for want of prosecution under rule 11.06 – Where no step was taken by either party – Where the child is now aged 14 and clearly expressed a view to remain with his father in 2011 – Where the court has no further information regarding the whereabouts of the child – Outstanding applications dismissed for want of prosecution.

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 11.06

APPLICANT: Ms Walters

RESPONDENT: Mr Mossimo

FILE NUMBER: PAF 1941 of 2005

DATE DELIVERED: 15 July 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 29 May 2015

No REPRESENTATION

Orders

1. That all outstanding applications and responses are dismissed and the proceedings are removed from the list of matters awaiting finalisation.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Walters & Mossimo (No 2) 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 PARRAMATTA

FILE NUMBER: PAF 1941  of 2005

Ms Walters

Applicant

And

Mr Mossimo

Respondent

REASONS FOR JUDGMENT

1. The primary issue in these proceedings relates to parenting arrangements for the child B born in 2000, currently 14 years of age.

2. The applicant is the child’s mother and the respondent is the child’s father.

3. The proceedings before this Court have had a long history, having been commenced by the applicant mother on 8 December 2005.

4. The child has a brother Mr C Mossimo born in 1994 now aged 20, and a maternal half sibling Ms D Walters born in 1992, now aged 22.

5. There has been ongoing litigation between the mother and father in relation to the child and his brother Mr C since 2005.

6. The father has had a history throughout the course of proceedings of failing to attend at court and failing to comply with orders in relation to the child.

7. In 2007 Dr E, child and family psychiatrist, was appointed the single expert in the proceedings. Dr E in his report dated 20 December 2007 recommended that the children reside with the father and have regular contact with the mother. In July 2010 Dr E prepared a further single expert report that recommended that the child the child reside with the mother and that there be no contact between the child and the father or with the child Mr C for a period of approximately a month to enable the child to settle in with his mother. Dr E suggested that contact between the father and the child then be introduced gradually.

8. Subsequent to the release of Dr E’s second report proceedings were listed for hearing commencing 11 October 2010 before Collier J.

9. At this time the child continued to reside primarily with the father and was to spend time with the mother.

10. On the first day allocated for trial there was no appearance by or on behalf of the father and a warrant was issued for the arrest of the father so as to procure his attendance before the Court.

11. On the following day 12 October 2010 the father appeared in person as a consequence of the execution of the warrant. Proceedings were adjourned for further hearing to 8 November 2010 allocating three days for trial.

12. On 8 November 2010 there was no appearance by the father at the commencement of the trial. The trial dates were vacated and the Court made interim orders in relation to the subject children that in summary provided:

    a)That the mother and father have equal shared parental responsibility for the children the child and Mr C;

    b)That the children live with the father;

    c)That the mother spend time with the child the child each Saturday between 10:00am and 1:00pm and that the mother spend time with both children from 10:00am Christmas Day until 10:00am Boxing Day;

    d)That the Independent Children’s Lawyer make contact with JIRT and request an appointment to the father and the children to attend for interview in relation to allegations by the child of having been sexually molested;

    e)That the mother be restrained from causing or permitting or allowing either of the children to be brought into contact with Mr F under any circumstances;

    f)That the father shall not remove the children’s place of residence from G Street, Suburb H;

    g)That proceedings be adjourned for further hearing to 14 February 2011 for three days.

13. On 28 January 2011 the Court made orders confirming the hearing dates and for the father to be notified of those dates and be advised that his personal attendance was required and in default of his attendance the matter would likely proceed in his absence.

14. On 14 February 2011 at the commencement of the resumed hearing there was no appearance by or on behalf of the father notwithstanding an order being made that he be in attendance at Court at 2:00pm that afternoon. The Court  made further interim orders in relation to the child the child that in summary provided:

    a)That all existing parenting orders in respect to the child be suspended;

    b)That the mother have sole parental responsibility for the child;

    c)That the child live with the mother provided that she resides at the premises of the maternal grandmother, that the child continue to attend his present school, that the mother not cause permit or allow the child to come into contact with Mr F;

    d)That the father spend no time with the child;

    e)That a recovery order issue to recover the child the child and return the child to the mother and that if the father attempts to see the child again without further order of the court he may be arrested without warrant;

    f)That proceedings be adjourned to 25 March 2011.

15. On 17 February 2011 the matter was once again before the Court. The Court made orders in summary that provided:

    a)That the father be restrained from allowing the child Mr C to go to the school attended by the child the child and from causing or allowing or encouraging any of his friends to do so;

    b)That the father be restrained from attending the child’s school for any reason whatsoever or coming within 100 m of that school;

    c)That the father ensure that the child Mr C does not attend the child’s school or approach within 100 m of the school;

    d)That the father not permit, cause or encourage any friends or members of his family to attend the child the child’s school or approach within 100 m of the school;

    e)That the matter remain adjourned to 25 March 2011.

The Department’s involvement

1. On 12 October 2010 the Department of Family and Community Services (“the Department”) received a risk of harm report in relation to the child. That risk of harm report involved the child disclosing that he was sexually abused by a Mr F whilst at the mother’s home.

2. On 14 October 2010 the Department referred the report to the Joint Investigative Response Team (JIRT).  In the period between 14 October 2010 and 4 November 2010 the Department was unable to contact the father or interview the child. The Department continued to seek to engage the father in relation to its involvement through December 2010 and January 2011.

3. As a consequence of the child not being able to be interviewed JIRT closed its file.

4. On 14 February 2011, as referred to above, orders were made that the child live with the mother.

5. On 1 March 2011 a Department caseworker attended at the child’s school in company with a police officer and interviewed the child. During that interview the child made disclosures of a sexual nature regarding Mr F. The child further disclosed that he was afraid about staying at his mother’s home as the mother and Mr F drink, argue and throw plates.

6. As a consequence of Departmental concerns the child was assumed into care by the Department. The mother was served with a copy of the care order on 1 March 2011 and on that date the child was placed into foster care with the father’s male cousin.

7. On 2 March 2011 the Department caseworker received communication that the child had absconded from school and was with the father. On the same day the Department intervened in these proceedings and a recovery order was issued in relation to the child requiring the child to be returned to the foster carer Mr I, a cousin of the father.

8. On 4 March 2011 the Court made an interim order providing that Mr I have interim parental responsibility for the child. A warrant was issued that day for the arrest of the father. On 16 March 2011 the child was recovered and returned to Mr I’s care.

9. On 17 March 2011 the father appeared before the court as a consequence of the warrant for his arrest having been executed. The father was released from custody subject to conditions that:

   a)He will appear before the Court at 12:00pm on 25 March 2011;

   b)That the sum of $10,000 in cash by way of bank cheque be deposited with the Court;

   c)That motor vehicle registered number … together with the ignition keys and registration document signed by the owner be produced to the Court; and

   d)He report to a Registrar of the court on the third floor each weekday following his release between the hours of 3:00pm and 4:00pm and he shall not on any occasion leave the Court until authorised to do so by the Registrar.

10. On 25 March 2011 orders were made for the mother and father to spend time with the child provided that the mother did not bring the child into any form of contact or communication with Mr F and the father was to have unsupervised time with the child each Saturday with the father to collect and return the child to and from Mr I’s home.

11. The father’s bail was continued on condition that:

    a)The father report to the Registrar’s section of the Court each Monday and Thursday between 2:00pm and 3:00pm;

    b)That the amount of $10,000 presently held by the Court be retained and continue as a condition of the father’s bail;

    c)That the father shall not under any circumstances discuss with the child nor cause, permit or allow any other person to discuss with the child these proceedings, the material to be relied upon by any party and/or the contents of any reports under any circumstances whatsoever;

    d)That the father shall not under any circumstances whatsoever discuss the mother of the child or any member of the mother’s household or family with the child or cause permit or allow any other person to do so.

12. Proceedings were listed for hearing for five days commencing 18 July 2011.

13. On 27 April 2011 the Department was informed that the child had not been returned to Mr I’s care after the father spent time with the child on 23 April 2011.

14. The child’s whereabouts have not been known to the Department since this date.

15. On 29 April 2011 the Court in summary made the following orders:

    a)That pending further order the Minister Department of Family and Community Services have sole parental responsibility for the child;

    b)That Mr I be discharged from any further participation in the proceedings;

    c)That a warrant issue for the arrest of the father to facilitate him being brought before the court is firstly to show cause why he should not be dealt with for contempt of this court for breaching orders of 25 March 2011 and by breaching bail conditions imposed on him on 25 March 2011 requiring him to report to the Registry of the Court each Monday and Thursday;

    d)That a recovery order issue to procure the return of the child to the Department;

    e)That upon the child being recovered or the father being arrested the matter be relisted within 72 hours.

16. Subsequently the recovery order in relation to the child expired on 29 April 2012, was renewed until 18 May 2013 and thereafter renewed again until the 17 May 2014. Similarly the warrant for the father’s arrest has continued to be renewed.

17. On 18 July 2011 a Commonwealth Information Order was made addressed to Centrelink Australia. No information has been forthcoming that has assisted with the location of the child.

18. The NSW Police Service has had an active engagement in relation to the warrant for the father’s arrest and the recovery order in relation to the child. On 5 September 2011 the father and the child were taken into Police custody. However the Duty Officer inexplicably released the father and the child on the agreement they would attend at the police station the following day at 9:00am. They did not attend. At the time of being spoken to by the Police the child said to the Police “you can’t take me away from my dad. I won’t go into care. I’ll kill myself if you make me leave my father”. With that the Police Officer observed the child to vomit and cry.

19. Notwithstanding ongoing enquiries by the Police the whereabouts of the father and child are not known. The Department has been informed that the Police were no longer actively investigating the matter as it was deemed that the father and the child were not “missing persons” but evading Police detection.

20. The Department exercised its powers under the Children and Young Persons (Care and Protection) Act 1998 (NSW) to seek information from various government entities, including interstate and various schools at which the child may attend. Those enquiries have failed to reveal the child’s whereabouts.

21. The Department continued to engage with other persons who may know of the child’s whereabouts but to no avail.

22. The Department filed an application in a case on 19 May 2014 seeking that the orders made on 29 April 2011 giving to the Minister interim parental responsibility for the child be discharged and that the Department be removed as a party to the proceedings.

23. It was the Department’s position that as a consequence of the child’s whereabouts being unknown since April 2011 the Minister has not been able to exercise parental responsibility for the child. The Department was of the view that there is little utility in the Minister continuing to hold parental responsibility for the child in circumstances where the child cannot be located.

24. The Department was of the view that the child was of a more mature age, being almost 14 years of age at the time of the application, and whilst the child’s wishes were not clear it was readily apparent from the child’s actions and his communication with the Police as referred to above that he had clear wishes to remain in his father’s care.

25. Importantly, the Department contended that the Court should have regard to the likelihood that in discharging the order for the Minister to have parental responsibility for the child then parental responsibility for the child would remain as provided for in the Family Law Act 1975 (Cth) with both parents having parental responsibility for the child, a responsibility that they could each exercise unilaterally. The Department also hoped that there may be some encouragement for the father to reveal his or the child’s whereabouts.

26. The court was satisfied that in the circumstances it was in the best interests of the child that the orders sought by the Department be made and orders were made accordingly on 2 December 2014.

Rule 11.06 dismissal of proceedings

1. Since the removal of the Department as a party to the proceedings in December 2014 there has been no contact by either of the remaining parties with the court. Indeed the last document filed by either of the parents was a notice of ceasing to act filed by the mother’s solicitors on 4 July 2011.

2. On 14 April 2015 the Court wrote to the parties at their last known address for service advising that in the absence of any application to re-list the matter or take a further step in the proceedings within one month it was the court’s intention to dismiss all outstanding applications before the court for want of prosecution pursuant to rule 11.06 of the Family Law Rules 2004 (Cth).

3. Proceedings were listed before the court in chambers on 29 May 2015 in order to ensure sufficient time for compliance with rule 11.06.

4. On 29 May 2015 a review of the file was undertaken and it was noted that neither party had contacted or approached the Court in accordance with the letter dated 14 April 2015. Further, there was no evidence on the Court file of the letter dated 14 April 2015 being returned to the Court for failure to reach their intended recipient.

5. The court has no updated information in relation to the child’s whereabouts or wishes. As submitted by the Department in their application to be removed as a party to the proceedings, the child is now of a more mature age and his wishes to remain with his father were readily apparent from his actions and communication with Police on 5 September 2011.

6. Given the failure of either party to take a step in the proceedings and that the Court has no further information regarding the child, it is appropriate for the Court to dismiss all outstanding applications before the Court for want of prosecution.

7. Orders will be made accordingly.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 15 July 2015.

Associate:

Date:  15 July 2015