Bidmead and Terry

[2009] FMCAfam 1409

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BIDMEAD & TERRY [2009] FMCAfam 1409

FAMILY LAW – Children – parental responsibility – where application withdrawn – need for final orders – best interests of the children – sole parental responsibility.

Family Law Act1975 (Cth), s.61DA

Applicant: MR BIDMEAD

Respondent: MS TERRY

File Number: SYC 6842 of 2008

Judgment of: Scarlett FM

Hearing date: 23 December 2009

Date of Last Submission: 23 December 2009

Delivered at: Sydney

Delivered on: 23 December 2009

REPRESENTATION

Solicitor for the Applicant: Ms Finn

Solicitors for the Applicant: Legal Aid NSW

Solicitors for the Respondent: Katie Smith Solicitor

Solicitor for the Independent Children’s Lawyer: Mr Mara

Solicitors for the Independent Children’s Lawyer: Adamson Lawyers

ORDERS

1. The Application filed on 20 November 2008 is withdrawn.

2. All previous parenting orders are discharged.

3. The children, [X] born [in] 2002 and [Y] born [in] 2003, are to live with the Mother.

4. The Mother is to have sole parental responsibility for the said children.

5. The Father is to have contact with the children by email or by telephone at times agreed between the parties.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 6842 of 2008

MR BIDMEAD

Applicant

And

MS TERRY

Respondent

REASONS FOR JUDGMENT

1. The application before the Court is an application by the father of two small children for parenting orders so that the children would spend specified periods of time with him.  The matter has had a lengthy and unfortunate history in that the application was filed on 20^th November 2008, which is longer to reach a resolution than the Court would normally prefer.  There have been serious issues between the parties and the Mother has expressed concerns about the Father’s behaviour.  These concerns have been well articulated on affidavit, there is in fact an apprehended violence order in force, and the Court has had the benefit of a Family Report which has been discussed by the Applicant’s solicitor with the Applicant.

2. The difficulty in getting this matter to finality before is shown by the fact that the application has been set down for interim hearing on no fewer than five occasions, as I commented on Monday.  It was listed for interim hearing on 17^th April, 3^rd June, 23^rd June, 30^th October, and 21^st December 2009. An interim hearing was not reached and there have been a number of reasons in this rather difficult matter as to why that has been the case. However, on Monday the 21^st December 2009, noting the imminent arrival of a Family Report, I adjourned the matter until today for mention and directions with a view to setting a date as to when an interim hearing would proceed.

3. However, the matter has taken a different course in that the Father, after being made aware of recommendations in the Family Report, has instructed his solicitor to withdraw his application.  I am satisfied that those instructions have been properly given and received, and I propose to note that the application is withdrawn. 

4. However, that is not the end of the matter because the orders for parenting that are in force are interim orders that were made by consent on 23^rd June 2009.  It is clearly inappropriate for interim orders to continue without an end date.  In my view it is in the best interests of the children for there to be final orders and it is in the best interests of the parties that the proceedings should be finalised today.

5. I propose to make orders discharging all previous parenting orders and ordering that the children are to live with the Mother. I have also considered the question of parental responsibility and I note in section 61DA of the Act that there is a presumption of equal shared parental responsibility when making parenting orders. However, subsection 61DA(4) provides for circumstances where that presumption may be rebutted, and the subsection quite clearly says that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

6. In my view the existence of a family violence order is of itself a very strong reason for the parents not to have equal shared parental responsibility. I am also of the view that the Father’s decision to withdraw his application and not seek any orders is another very strong reason for the Court to consider that the presumption of equal shared parental responsibility would not be in the best interests of the children.  Accordingly I will be making an order that the Mother is to have sole parental responsibility.

7. I am not prepared to make an order that the Father is to have no contact with the children. In my view, the lines of communication should be kept open, and indeed it has been suggested that an order relating to contact by email or by telephone at appropriate times would be a good way for the communication to continue.  I agree with this suggestion which I consider is well thought out and I propose to make such an order. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  19 January 2010