Berne and Hume

[2015] FamCA 1213

FAMILY COURT OF AUSTRALIA

BERNE & HUME [2015] FamCA 1213

FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant was unable to travel to Australia for the final hearing on the basis of his hospitalisation in England – Where the material that the applicant filed in relation to his hospitalisation was inadequate – Where the balancing of all the factors in this matter fall in favour of stability of the respondents – Where the distress, disruption and cost to the respondents is likely to be having a sufficient unsettling impact on the child – Where the applicant’s application is dismissed.

APPLICANT: Mr Berne

RESPONDENTS: Mr and Ms Hume

INDEPENDENT CHILDREN’S LAWYER: Foat Roberts Lawyers

FILE NUMBER: NCC 3053 of 2013

DATE DELIVERED: 22 December 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 22 December 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Leckie Law

SOLICITOR FOR THE RESPONDENTS: Coffs Coast Family Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Foat Roberts Lawyers

Orders

1. The Initiating Application filed on 3 December 2013 is dismissed.

2. Leave is granted to the Respondents to file and serve any material in support of their oral Application for Costs within 8 weeks of the date of these Orders.

3. Leave is granted to the Applicant to file and serve any Response to the Respondent’s Application for Costs within 8 weeks of the expiry date of

   
   

   Order 2.

4. Leave is granted to the Independent Children’s Lawyer to file and serve her Application for Costs within 8 weeks of the date of these Orders.

5. Leave is granted to both the Applicant and Respondents to file and serve any Response in relation to the Independent Children’s Lawyer’s Application for Costs within 8 weeks of the expiry date of Order 4.

6. All submissions shall be in writing and upon receipt of all submissions or expiry of the allocated time, whichever comes first, Orders will be made on a date to be advised.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Berne & Hume 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 NEWCASTLE

FILE NUMBER: NCC 3053 of 2013

Mr Berne

Applicant

And

Mr and Ms Hume

Respondents

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. This is an application made by the biological father (“the applicant”) of one child, a girl aged almost 10 years old. 

2. The circumstances are that the respondents are effectively the parents of the child: the respondent mother (“the mother”) is the biological mother of the child and the respondent father (“the respondent father”) is the social father to the child, and the only father she has known.

Brief History of Relevant Events

1. The respondents married in 2003 in the UK.

2. Their first child is now 12 years old. 

3. In 2005, the mother made contact with the applicant for a variety of reasons that do not need to be discussed here, and the subject child was conceived.

4. There was ongoing contact between the applicant, the mother and the child, for a period of about two years. The child was probably introduced to the applicant as a grandfather. The relationship between the mother and the applicant became a difficult and hostile one. 

5. In 2009, a harassment notice was issued against the applicant by police in Wales, where the respondents were then living.  There were proceedings in Wales, and orders made directing the respondents to take certain steps to advise the child that the applicant was in fact her father.

6. The matter was to be revisited in Wales, when those orders were made, in November 2010. 

7. In June 2012, final orders were made allowing the respondents to relocate to Australia. Those orders also allowed the applicant to communicate with the child through email, such communication to start in January 2013, after the mother had advised the child that the applicant was her biological father. 

8. The respondents duly relocated and have lived in Australia since, so a period of a little over three years. 

Commencement of these Proceedings

1. In December 2013 the applicant filed his Initiating Application, seeking final and interim parenting orders. 

2. The respondents filed their Response in February 2014.

3. The matter has progressed through the Federal Circuit Court, and was then transferred to this Court. 

4. On 16 April 2014 the applicant filed an Amended Initiating Application, seeking shared parental responsibility with the mother and that he spend time with the child on a regular basis, defined by him as “when he was living in Australia”.  There were also proposals for how the child would spend time with him when he was overseas, particularly via types of communication such as Skype, email, and phone. 

5. The matter was set down for a final hearing for three days, commencing

   
   

   28 October 2015.

6. It has to be said that the respondents have not facilitated time between the child and the applicant, and it is clear on their material that they are reluctant to do so.  They were reluctant to comply with the orders of the court in Wales, and have been hopeful of succeeding with an application in these proceedings for orders that there be no contact between the child and the applicant. 

The Issues

1. The matter did not proceed on 28 October 2015, due to the assertion by the applicant that he was unwell and unable to travel.  Directions were made for the applicant to serve evidence of his hospitalisation in England, which was said to have prevented his travel.

2. The material that was filed was inadequate in that sense.

3. There was a medical report in French, which was translated, of the applicant attending the emergency department of that hospital in France, and communicating that he had been in hospital in England in October 2015.

4. But there is no evidence before me of the basic matters, such as:

   a)When the applicant was admitted to hospital, and why; 

   b)The treatment he received; 

   c)The date of his discharge; and

   d)His prognosis.

5. It was urged on me by the solicitor for the applicant that the matter should be set down for hearing on dates after the expiry of a period of six months, on the basis that the applicant is likely to be able to travel then.

6. There is no evidence before me that supports that proposition. 

7. The report from the French hospital simply says that the applicant’s long-term follow up will need to be closely monitored by the Department of Pulmonary Disease over the next six months to ensure no recurrence of syncope or pulmonary embolism. That provides the information that there is ongoing monitoring of the applicant’s condition, but no certainty – and perhaps there cannot be – that after the expiry of six months he will be in a position to travel.  To date, he says his doctor’s warning is that it is unwise.

8. As to her next position, the solicitor for the applicant suggested an adjournment into the New Year, for further medical evidence about whether or not the applicant is in a position to travel, or whether he would want to proceed with a hearing through video-link. 

9. I am not inclined to grant that application given what occurred around the dates in October 2015, where the possibility of video-link was raised and rejected by the applicant as too costly and difficult to organise.

10. The prospect of the applicant giving evidence through software available through the Court from his home was opposed, understandably enough, by the respondents on the basis of the lack of control over the circumstances of where the applicant would be giving evidence, and who else might be present.

Conclusion

1. It seems to me that there needs to be a balance between:

   a)The need for the child to properly be told who her biological father is, so that she is well-informed at an age when she can best receive the information, in anticipation of making decisions for herself as she grows older, and particularly as she becomes a young adult;

   b)The effect on the respondents of the cost, both financial and emotional, of one hearing having collapsed, with the prospect of the same happening again, potentially; and

   c)The application of the applicant, who understandably wants to see the orders made in Wales complied with, or fresh orders made here, to ensure a relationship between himself and the child.

2. The balance falls in favour of stability for the respondents.  Such that no further hearing is appointed, and no further evidence is directed, especially as the applicant has had every opportunity to file proper evidence of his hospitalisation in England. 

3. There is nothing to prevent a further application, based on the changed circumstances of improved health and ability to not only travel to Australia for a trial, but to be able to travel to Australia either to live, as his solicitor suggest might be the case, or to visit, as his original application and amended application suggests.

The Orders

1. I note that the dismissal is supported by the Independent Children’s Lawyer, despite her concerns, as stated in these Reasons, that the child should know the biological truth of her identity and be properly informed about who her biological father is. Nevertheless, the distress, disruption and cost to the respondents is likely to be having a sufficient unsettling impact on her, such that the Independent Children’s Lawyer supported the dismissal of the applicant’s application.

2. The respondents make an application for costs.  The application is for time to be allowed for submissions to be made about that, and given the time of year, I am prepared to grant that time.

I certify that the preceding thirty one (31) paragraphs are a true copy of the

ex-tempore reasons for judgment of Justice Cleary delivered on

22 December 2015.

Associate: 

Date:  18 February 2016