Adam and Shepherd

[2008] FamCA 513

FAMILY COURT OF AUSTRALIA

ADAM & SHEPHERD [2008] FamCA 513

FAMILY LAW – CHILDREN – with whom a child spends time – no appearance by the father – no documents filed by the father - satisfied that the father has been served with the relevant documents – orders made in terms sought by the mother in default of appearance by the father.

Family Law Act 1975 (Cth)

APPLICANT: Mr Adam

RESPONDENT: Ms Shepherd

FILE NUMBER: ADF 1496 of 2006

DATE DELIVERED: 13 May 2008

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Stickland J

HEARING DATE: 13 May 2008

REPRESENTATION

THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Ms Pearce

SOLICITOR FOR THE RESPONDENT: Women's Legal Service

Orders

1. That the child … born … July 2000 do live with the mother who shall have sole parental responsibility for the said child.

2. That the father do spend time with and communicate with the said child as agreed.

3. That handover of the said child at the commencement and conclusion of the periods of time the father shall spend with the child do take place inside the T Police Station.

4. That handovers of the said child be conducted by the mother and the paternal grandmother and that no other persons attend contact handover.

5. That the father is restrained and an injunction is granted restraining him from denigrating the mother or the mother’s partner in the presence of the said child or within his hearing.

6. That the father is restrained and an injunction is granted restraining him from removing or attempting to remove the said child from the State of South Australia without first having received the mother’s written consent.

7. That the father is restrained and an injunction is granted restraining him from consuming alcohol or any other drug during periods when he is visiting with or communicating with the said child.

8. That all applications be dismissed and removed from the active pending cases list.

9. That pursuant to Section 62B and Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.

IT IS NOTED that publication of this judgment under the pseudonym Adam & Shepherd is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1496 of 2006

MR ADAM

Applicant

And

MS SHEPHERD

Respondent

EX TEMPORE REASONS

1. This is a matter that was listed to commence before me today as a trial pursuant to Division 12A of the Family Law Act. The father though has not attended. 

2. The father commenced these proceedings when he filed an Application for Final Orders on 20 October 2006.  The mother responded to that application with a Response filed on 13 November 2006.  There have been interlocutory proceedings and there is an interim order in place, that being the order made on 25 January 2007.  Since then the solicitors who represented the father filed a Notice of Ceasing to Act in October 2007 and all that has happened with this matter is that the mother has filed an Amended Response to an Application for Final Orders on 28 February 2008.  For some odd reason which I cannot fathom from the file and I am not assisted by counsel, the mother also filed an Amended Response to an Application in a Case together with a supporting affidavit.  Why I am unclear about that is that previous to that, the mother had filed a Response and that interim matter had been dealt with, but I need not dwell on that.

3. The father has not involved himself in these proceedings, it seems, since 1 June 2007 when there was a Child Dispute Conference conducted by Ms D, family consultant, and both parties attended by way of telephone.  The memorandum from that conference indicates that the parties reached agreement about the issues that were in dispute, however, there is no indication on the Court file that there was any order made or any parenting agreement entered into.  Ms D’s recollection of the matter is that the mother continued to have concerns about the father’s capacity to care for the child.  In any event, the long and the short of it is that there has never been any order or parenting agreement finalising this matter.

4. The issue in this case is not about who the child lives with but about the terms of and the time for the child to spend time with his father.  Separate to that, each party seeks injunctions in relation to the other of them. 

5. This matter came before Registrar Dore on 3 March 2008.  The parties were given notice of that procedural hearing and specifically the father.  However, the father failed to attend.  Despite that Registrar Dore made orders about the filing of further documents, including the filing of Questionnaires, and listed the matter to commence as a trial today, 13 May 2008. 

6. There is a notation on the Draft Order sheet from the Registrar which says that the Court was to forward a copy of these orders and directions to the father.  I might have missed it but I cannot see anything in the Court file which indicates that the Court in fact did that, however, I am told by the mother’s counsel that on 12 March 2008 a letter was sent to the father advising of the orders that were made at that procedural hearing and advising him of the hearing date and of his need to attend.  Nevertheless the father has not attended, as I noted earlier, and nothing has been heard from him in terms of what position he wants to take in these proceedings or whether he wishes to pursue any application or what interest generally he has in the matter anymore.

7. Ms D, family consultant, pursuant to an order made by the Registrar set up appointments for an initial intake and assessment meeting and a child and family meeting.  However, the father failed to attend those meetings.  Ms D tried to contact him by telephone but was unsuccessful.  Those meetings proceeded but only with the mother and the child and I have before me the Children and Parents Issues Assessment prepared by Ms D as a result of those meetings. 

8. I am told from the bar table that the only contact that the mother has had with the father was in April this year.  She spoke with him on the telephone.  I understand the father has not had any time with the child for some time.  The child did though spend time with the paternal grandmother in the school holidays in April this year on a daily basis for four consecutive days.

9. That is a brief history of the matter and in summary, I am satisfied that the father has been served with the relevant documents.  There is an Affidavit of Service on file and I am satisfied that the father has been aware of the hearings and of the requirement to file documents, including a Questionnaire.  The fact of the matter is that he has not done anything, he has not attended today and the mother seeks final orders today in default of appearance by the father and in default of him filing his Questionnaire.

10. Given the circumstances of this case, and particularly that the mother has travelled from T for this hearing, and she has also done that in the past in relation to previous hearings, and given what I have read in the Children and Parents Issues Assessment and given what I have heard from Ms D who is present today, I am prepared to make the orders sought by the mother in default of appearance by the father.

I certify that the preceding 10 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 13 May 2008.

Associate