Williams and Lyons

[2014] FamCA 35

FAMILY COURT OF AUSTRALIA

WILLIAMS & LYONS [2014] FamCA 35

FAMILY LAW – CHILDREN – Best Interest – With whom the children spend time – Supervised time – Risk – Where the mother and the father have each filed a notice of discontinuance – Where the Independent Children’s Lawyer seeks an injunction restraining the parents from allowing the father unsupervised time with the children – Where the Department has been requested to intervene.

Family Law Act 1975 (Cth)

APPLICANT: Mr Williams

RESPONDENT: Ms Lyons

INDEPENDENT CHILDREN’S LAWYER: Trent Waller

FILE NUMBER: CSC 608 of 2011

DATE DELIVERED: 29 January 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 29 January 2014

REPRESENTATION

FOR THE APPLICANT: No Appearance

FOR THE RESPONDENT: No Appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Waller
M+K Lawyers

Orders

1. That the Mother be restrained from:

   (1.1)Leaving T, K, B and H (“the children”) unsupervised in the presence of the Father;

   (1.2)Facilitating the Father spending time with the children without a supervisor approved or nominated by the Independent Children's Lawyer;

   (1.3)Facilitating through a third party the Father spending time with the children without a supervisor approved or nominated by the Independent Children's Lawyer; and

   (1.4)Arranging with a third party for the Father to spend time with the children without a supervisor approved or nominated by the Independent Children's Lawyer.

2. That the Father be restrained from:

   (2.1)Spending time with the children which is not supervised by a supervisor approved or nominated by the Independent Children's Lawyer;

   (2.2)Remaining in a place with the children where there is not a supervisor approved or nominated by the Independent Children's Lawyer present or supervising the Father’s time with the children; and

   (2.3)Contacting or arranging with the Mother or a third party to spend time with the children without a supervisor approved or nominated by the Independent Children’s Lawyer.

NOTATION

A.IT IS NOTED the Independent Children's Lawyer approves of the E Contact Centre facilitating the Father spending supervised time with the children.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Williams & Lyons 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: CSC 608 of 2011

Mr Williams

Applicant

And

Ms Lyons

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 5 February 2013, Registrar Stoneham of this Court made Orders by consent in parenting orders proceedings between the father, Mr Williams, and the mother, Ms Lyons, in respect of two of their children, T born in February 2004 and K born in August 2005.   On that occasion, just over a year ago, the applicant father was represented by solicitors and the respondent mother was also represented by solicitors.  Mr Waller, the Independent Children's Lawyer, also appeared and gave his consent to the Order. 

2. The Order provided that the mother was to enrol those two children, T and K, for individual counselling at a Supporting Children after Separation Program through Lifeline and to ensure that they continue attending those programs.  These consent orders, it is noted, were made following the preparation and delivery of a Family Report in this matter prepared by a Family Report Writer, Ms D, that was dated 18 September 2012. 

3. The order also provided that the children start spending supervised time with the father at a children’s contact centre at Suburb E for two hours each fortnight, depending on the availability of the centre.  They also provided for the Independent Children's Lawyer to arrange for an updated Family Report to be prepared at some later date.  There are also two other children of these parents who were not specifically named in that Order.  They are H born in January 2010 and B born in April 2008. 

4. On 31 August 2013 an affidavit of Mr F, an expert well known to this Court for the provision of Family Reports, was filed and it attached an updated Family Report prepared by Mr F in respect of this family at the request of the Independent Children's Lawyer.  It is quite an extensive report and it ultimately made recommendations that included that the four girls I have already named, live with their mother and that she have sole parental responsibility for them on the condition that she and her current partner, Mr A, engage with a helping professional, as nominated by the ICL, to consider their separate and/or shared challenges in forming a blended family.  He also recommended that the mother participate in extended, robust individual counselling with the ICL nominated practitioner.

5. Most importantly, Mr F recommended that the four girls spend time with the father only through contact centre visits that continued to take place on a weekly or fortnightly basis.  In other words, he recommended that their time with their father continue to be supervised. 

6. By way of some very brief relevant background, the mother, Ms Lyons, was as a child placed into the household of the father and his then wife and their children, placed in their foster care, in the late nineties.  The father’s then wife separated from him and left him with the children of their relationship and the mother, who was then a young teenager. 

7. It seems that the father who was at the time in his mid-thirties, according to Mr F’s opinion, groomed the young teenage Ms Lyons, the mother in these proceedings, into a sexual relationship with him.  This was, on her account when she was only 14, and on his account, when she was 16.  Their sexual relationship clearly endured and the four children the subject of these proceedings are the products of that relationship. 

8. One of the daughters of the father’s prior marriage subsequently became seriously engaged in self-cutting behaviour, was diagnosed with broader mental health disorders and also alleged sexual abuse perpetrated against her by the father and indeed admitted to sexually abusing herself some of the children the subject of these proceedings. 

9. At some point in time between giving birth to these four girls, the mother as a very young adult woman, was also actively engaged in the adult entertainment sex industry, apparently supported or at least acquiesced in by the father.

10. There is a suggestion in the material that I have read, although I have not read it very thoroughly, that two of the four children the subject of these proceedings have made disclosures of sexual abuse at the hands of the father but that they have subsequently been withdrawn. 

11. Against all that background it is not surprising that Mr F, as recently as the provision of his report in October last year, recommended that these girls only spend time with their father on a supervised basis by way of visited contact centre. 

12. However, it came to the attention of the Independent Children's Lawyer, Mr Waller, in November last year just after the provision of this report by Mr F that these girls were in fact, notwithstanding the existing orders that had been consented to and the recommendations of Mr F, spending unsupervised time with the father.  Mr Waller wrote to the solicitor for the father seeking confirmation as to whether that was true or that the children were only spending time with the father in accordance with the existing Order.  He also wrote to the mother advising her that what he understood was the case and copying the correspondence that he sent to the father’s solicitors.  In his affidavit filed 22 January Mr Waller deposes to receiving no reply from the mother or the father.  On 22 January 2014 Mr Waller then filed the application in a Case that brings the matter before the Court today in which he seeks injunctions to be issued against the mother and father restraining them from effectively putting in place or allowing arrangements to happen whereby these children spend unsupervised time in the presence of the father. 

13. The matter was back before Registrar Stoneham on 24 January, just five days ago. On that day a solicitor appeared for the applicant, the respondent mother appeared on her own behalf and Mr Waller appeared. Registrar Stoneham made a request pursuant to s 91B of the Family Law Act for the Director-General of the Department of Communities, Child Safety and Disability Services to intervene in the proceedings in respect of the welfare of these four girls.  I understand that request has been forwarded to the Department.

14. I am aware that the Department has turned its attention to the matter and also considered the Form 4 Notice of Child Abuse Risk of Family Violence appropriately filed by Mr Waller on 22 January and requested of Mr Waller in recent days copies of both Family Reports prepared by Ms D and Mr F in 2012 and 2013.  On 24 January Registrar Stoneham also listed Mr Waller’s Application in a Case and Form 4 Notice for hearing before me today.  I am clearly satisfied therefore that both the mother and the father were aware of the application that is before me today.  Indeed they were called outside three times by the Court Officer and no appearance was recorded.  That is not surprising given on 24 January 2014 they each filed or caused to be filed Notices of Discontinuance of these proceedings, suggesting that they no longer want the matter to be litigated or even considered by this Court notwithstanding the Independent Children’s Lawyer in the proceedings, at the appointment of the Court, whose independent task it is to represent and advocate to the Court what is in the best interests of these four girls, even if that is contrary to what both of their parents think is in their best interests. 

15. Clearly, as has been recognised in the submissions made to the Court his morning, Mr Waller appreciates the fact that when parents of children no longer wish to take part in proceedings in this Court, because they are no longer in actual dispute with each other about what is in the best interests of children, it becomes difficult for an Independent Children's Lawyer to maintain the independent line as to what is in a child’s bests interests or indeed at least to ensure that the best interests of the children through orders made in this Court that are considered to be in their best interests, are actually maintained.  He acknowledges that there is a point where in those circumstances the matter crosses the line between a parenting orders dispute within the jurisdiction appropriately of this Court into the child welfare arena more appropriately within the jurisdiction of the State Courts pursuant to State child welfare legislation.  In that regard, it is pleasing at least to see that the Department has become involved and is no doubt at the moment seriously considering the position it is to take in respect of these four girls. 

16. In all the circumstances I am quite satisfied that it is in these children’s best interests to make the Orders, that is, grant the injunctions in the form sought by the Independent Children’s Lawyer this morning in the Application in a Case filed 22 January 2014.  Accordingly, I make the Orders in accordance with the terms that are set out in that Application.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 29 January 2014.

Associate: 

Date:  30 January 2014