West and Marley

[2012] FamCA 572

FAMILY COURT OF AUSTRALIA

WEST & MARLEY	[2012] FamCA 572
FAMILY LAW – CHILDREN – Interim – With whom the children live – With whom the children spend time – Where the Father has failed to comply with a previous order – Where one child is indicating suicidal thoughts – Children to live with the Mother – Father to spend supervised time with the children for two (2) hours per week– Children to receive counselling

APPLICANT:	Ms West
RESPONDENT:	Mr Marley

INDEPENDENT CHILDREN’S LAWYER: Mr Pohlman, Solicitor

FILE NUMBER: TVC 411 of 2010

DATE DELIVERED: 10 July 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 10 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fellows of Counsel appearing by telephone for the Applicant Mother

SOLICITOR FOR THE APPLICANT: J Hamilton & Associates

COUNSEL FOR THE RESPONDENT: The Respondent Father appearing by telephone (not legally represented)

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Mayes of Counsel appearing for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

The Family Law Centre

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The Father hand over the children, B born … November 1997, N born … October 1999, and C born … August 2001, to the Mother by 4.00 pm today.

1. Pending delivery of final Orders in this matter, the children live with the Mother.

1. The Father spend supervised time with the children at the … Contact Centre for no longer than two (2) hours once per week.

1. The Mother and Father are to comply with any appointments made by the … Contact Centre for intake interviews and comply with the intake procedure of the Centre within seven (7) days of the date this Order, with the costs of the Contact Centre to be borne by the Father.

1. The Father be restrained, either by himself or his agents, and an injunction is issued restraining him by himself or his agents from speaking to or approaching the children either where they live with the Mother, or at their schools or in or at any other place.

1. The Father be directed to provide a copy of these Orders to Ms E.

1. The Mother be directed to provide a copy of these Orders to the schools the children attend.

1. The Independent Children’s Lawyer:

a.speak to the children and advise them of these Orders; and

b.organise for the children to be counselled, preferably by Ms S

or if unavailable by Mr H or Mr J.

1. The Father pay such costs as are incurred by the Independent Children’s Lawyer in relation to the counselling referred to in Order 8(b) hereof.

IT IS FURTHER ORDERED THAT:

1. The Father to pay the Mother’s costs of today’s application to be agreed upon or assessed.

1. The matter be adjourned before the Honourable Justice Bell for mention at
   10.00 am on 14 August 2012 at Town M.

1. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym West and Marley 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: TVC 411 of 2010

Ms West

Applicant

And

Mr Marley

Respondent

REASONS FOR JUDGMENT

1. In this matter, I had heard an application for residence and contact in relation to the children of the relationship between the applicant mother, Ms West (“the mother”) and the respondent father, Mr Marley (“the father”).  The matter took, I think, two or three days and as a result of the exigencies of time, I ordered that the submissions of the parties be sent to me in a structured form.  It appears from the evidence which has been put before me in support of an application in a case which was filed in the Townsville Registry yesterday, that the children have not been returned at the expiration of the contact period which was set out in the order of Benjamin J and as varied by the parties.

2. The mother has sought, therefore, an order that the children be returned to her and various other orders which are set out in the application in a case, to which I have referred.  The applicant is represented by Fellows of counsel, the independent children’s lawyer by Ms Mayes of counsel and Mr Marley himself has appeared.  He has forwarded some form of internet communication which I have looked at which inter alia, he alleges that N, otherwise known as …, is indicating suicidal thoughts.  That had concerned me and still does and obviously it has concerned the mother because part of her orders as sought in the application in a case, I refer particularly to order sought 5, that the children be counselled.

3. I think that is a very good idea and I understand from the independent children’s lawyer’s counsel that approaches have been made to a Mr H who will be available, as I understand, to counsel the children and speak to them about this matter.  I am returning to Town M for another matter on the 12^th August and the Court will be sitting on the 13^th and 14^th August. Consequently, if anything arises, I will, of course, be available and make myself available as a matter of courtesy and responsibility towards the children, not towards the parties.

4. The father has submitted that N has, first of all, indicated suicidal intentions, that it is not the first time that she has done that and I must say that it absolutely staggers me that a matter of such grave concern, of a child indicating an intention to harm herself, has not been brought properly before this Court by the father.  It does tempt me to suggest that and I would like to hear more from him about this, he has not put the welfare of the child first by not informing the Court of the statements made by the child which would lead him to believe that the child may be at risk of committing suicide.

5. There are other matters, of course, which I will have to consider in relation to the father’s conduct after I have received the full submissions of the applicant, the respondent and in particular, the father.  I make it quite clear that I am ordering the children forthwith be returned to the mother and I am ordering in accordance with 1, 2, 3, 4 and 5 of the application in a case.  I had baulked a little, if I may say, at 6 and 7 which are, in effect, orders to indemnify the independent children’s lawyer in relation to any costs that may be sustained by their having counselling with Mr H and secondly, the costs of the mother’s appearance here today.

6. I must say that I am quite surprised that the respondent has, in fact, opposed the mother’s costs in this case.  It was his own failure to comply with the order of Benjamin J and clearly the inference that I have made during the trial, that the children be returned to the mother and consequently, I can see no reason for not ordering costs against him, save that I have to consider his ability to pay.  There is clear evidence before the Court that he has, in accounts, some $50,000 which he says are the proceeds from insurance claims tendered by various natural disasters.  He has told me in Court, however, that all the damage to the property have been repaired, either by himself or tradesmen who he has not offered to me, notwithstanding my request, invoices, save for some internal matters and white goods such as, I understand, a fridge, air conditioning and a computer.

7. There may be other matters which he says will amount to $30,000.  I asked for invoices concerning that too, as well.  That would leave him at least $20,000, notwithstanding his claim that he is impecunious, the accounts are before the Court and have been tendered.  The costs of the mother have been incurred by his failure to comply with the order.  He has not put any or any adequate material before me to show why he should not have complied and I would order that he pay the applicant’s costs, to be agreed upon or assessed in accordance with the rule.  I must say that, should the children not be returned by 4.00 pm this afternoon, that I would consider an application for a recovery order.

RECORDED  :  NOT TRANSCRIBED

1. Insofar as the independent children’s lawyer is seeking an amount of some $1,500 to which I have referred as being an endeavour to indemnify the independent children’s lawyer from any costs that may be incurred by Mr H.  Once again, the amount of $1,500 may be excessive, since I saw a letter from the independent children’s lawyer which inter alia offered Ms S $750 for her expert counselling and consequently, I will order that the father do pay such costs, as are incurred by the independent children’s lawyer in relation to the counselling ordered in order 5.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 10 July 2012.

Associate: 

Date:  10 July 2012