Windle & Elms

[2021] FamCA 531

FAMILY COURT OF AUSTRALIA

Windle & Elms [2021] FamCA 531

File number(s):	BRC 1028 of 2019
Judgment of:	BAUMANN J
Date of judgment:	18 June 2021
Catchwords:	FAMILY LAW – PARENTING – Where the father sought an order for sole parental responsibility and that the child live with him – Where the mother seems to be involved in a number of ongoing criminal proceedings – Where the mother has disengaged with the parenting proceedings – Orders made on an undefended basis – Orders made for the father to have sole parental responsibility and that the child live with the father.
Number of paragraphs:	10
Date of last submission/s:	18 June 2021
Date of hearing:	18 June 2021
Place:	Brisbane
Solicitor for the Applicant:	No appearance
Solicitor for the Respondent:	Ms Somerville, Cherry Family Lawyers
Solicitor for the Independent Children's Lawyer:	Ms Harrington, Julie Harrington Solicitor

ORDERS

BRC 1028 of 2019

BETWEEN:

MS WINDLE

Applicant

AND:

MR ELMS

Respondent

AND:

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	18 JUNE 2021

THE COURT ORDERS ON A FINAL BASIS:

1. That all previous Orders be discharged.

2. That the father have sole parental responsibility for the child, X born … 2017 (“the child”).

3. That the child live with the father.

4. That the child spend time and communicate with the mother at all reasonable times as may be agreed in writing between the parents.

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

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

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 17.02 Family Law Rules 2004 (Cth).

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

EX TEMPORE REASONS FOR JUDGMENT

BAUMANN J:

1. The focus of the parents’ dispute which has now been before the Court since proceedings commenced, most recently in January 2019, and were the subject of other disputes, relates to a child, X born in 2017, soon to turn four years of age. In short, the Applicant mother, Ms Windle, who is now 30 years of age, had a child, X, with the Respondent father, Mr Elms, who is now 23 years of age. The parties separated around the time of X’s birth. There was another child that was the subject of proceedings involving the mother and a different father, Mr B, named Y, who is 13 years of age. Those proceedings have been dealt with by final consent Orders made by Senior Registrar Spink on 4 March 2021. Those Orders, for the sake of the record, provided for Y to live with his father, Mr B, and spend supervised time with the mother.

2. I make that observation because in determining whether final orders are made today, it is not the case, for example, that with X continuing to live with Mr Elms as his order seeks, and as is supported by the experienced Independent Children’s Lawyer, Ms Harrington, that X would be separated from Y, with Y living in the care of his father. This matter had been set up for a determination on an undefended basis with appropriate Orders having been made and an appearance required on 21 May 2021. On that occasion, Ms Somerville appeared for the father, as she does again today. Ms Harrington again appears as the Independent Children’s Lawyer. I can recall on that occasion being directed to the very significant affidavit of Mr Elms filed on 23 February 2021, which is relied upon again today.

3. It was an affidavit that had essentially been requested by the Court, so as to bring the Court up to date with the current living arrangements for X. I can recall almost being in a position of pronouncing orders on 21 May 2021, when the mother arrived late, but nonetheless seeking to be engaged in the process. I do not have a transcript of my discussions with the mother on the day, but I can recall in general explaining to her my concerns that she was not spending time with X; that she seems to be the subject of a number of ongoing criminal proceedings; that the issue of her continued use of illicit substances is unresolved and that she has, on a number of occasions, just failed to engage in the process or appear in the Court as directed. I bluntly put to her that the Court cannot continue to give her chances to engage and that really, she should get her life in order and present to the Court at a future time, perhaps in a much better position to show and demonstrate her capacity to be of value in a relationship with her daughter, who I am satisfied she loves and would wish to be involved with continuously.

4. The nature of those discussions and the delay in pronouncing orders, which I was otherwise satisfied were in the best interests of the child - having read the affidavit of the father, Mr Elms - can be gleaned from the nature of the Order I made on the day. Ms Harrington says that the mother has failed to comply with the Orders, which in effect provided for the mother to submit to a random urine analysis by 4.00pm on the following Monday.

5. There are examples where the mother has previously failed to submit to a requested urine analysis. There is no evidence that she has submitted to urine analysis under that Order and further on 21 May 2021, it was Ordered that:

   2.   That within seven (7) days, the mother is to procure and provide to the Independent Children’s Lawyer a letter from either her parole officer or Queensland Police Service confirming the mother’s statement made today that there are no pending criminal or traffic charges pending at this time against the mother and if criminal proceedings have been finalised, information on what the charges were and what the outcomes were.

6. The reason for this, was that there was some uncertainty based on the subpoena material and the investigations of the solicitor for the father about the nature of further proceedings. The mother, I accept, made statements from the bar table which were not evidence and asserted there were no further matters before the Courts of a criminal nature that affected her. Ms Harrington says, and I accept, that she did not comply with Order 2.

7. The Court further ordered on 21 May 2021 that:

   3.   That within fourteen (14) days the mother shall file and serve an Affidavit in response to the father’s Affidavit filed 23 February 2021.

8. She has not done so. Order 4 made that day provided:

   4.   That within seven (7) days the mother shall advise the Independent Children’s Lawyer who her counsellor is.

9. The mother has not complied with that Order either. I have made it clear to the father, earlier, through his lawyer, that any final order made today in the absence of the mother might invite an application for it to be varied or set aside because it was made in her absence. That would not be done without there being a basis to exercise a discretion to revisit the Order today. I also made the point to the father, which I accept he understands, that for a child of this age and there being no doubt that Ms Windle is the biological mother of the child, that if she is able to demonstrate at a future time the capacity to be a valuable contributor to the life of X, she could bring an application to the Court. At that stage, a Judge of this Court would be in a position to consider whether, in the best interests of the child, revisiting the Order made today should be undertaken.

10. However, the Court should support Mr Elms, whose efforts in maintaining a stable lifestyle for X, for now over two and a half years, should no longer be interrupted by ongoing litigation, including having to make appointments to see legal advisors and the like. It is in the child’s best interests that I make the Orders that draws the consent of both the father and the Independent Children’s Lawyer. I make those Orders on the final basis. I also order that the Independent Children’s Lawyer be discharged.

I certify that the preceding ten (10) numbered paragraph is a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann.

Associate:       

Dated:            26 July 2021