Brunton and Hirst (No. 2)

[2007] FamCA 721

FAMILY COURT OF AUSTRALIA

BRUNTON & HIRST (NO. 2) [2007] FamCA 721

FAMILY LAW - CHILDREN - Parenting orders - Father filing Notice of Discontinuance - Final orders made

Family Law Act 1975 (Cth)

APPLICANT: MS BRUNTON

RESPONDENT: MR HIRST

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 438 of 2006

DATE DELIVERED: 17 JULY 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: YOUNG J

HEARING DATE: 17 JULY 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS BROOKS

SOLICITOR FOR THE APPLICANT: RIGOLI & ASSOCIATES

COUNSEL FOR THE RESPONDENT: NO APPEARANCE

INDEPENDENT CHILDREN’S LAWYER COUNSEL: MR LYNCH

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: PETER LYNCH

ORDERS

1. THAT all previous parenting orders of this Court made in respect of the child of the relationship D born in September 2002 (“[D]”) be discharged.

2. That D live with the mother.

3. THAT the mother have sole parental responsibility for D.

4. THAT forthwith the mother shall ensure D attends counselling to address issues relating to the impact of parental dispute upon D’s functioning and her relationship with her parents.

5. THAT the counselling referred to in paragraph 4 hereof be conducted by a psychologist or such other suitably qualified person or organization as recommended by the mother’s general practitioner at S Clinic in G and such counselling to continue for so long as directed or recommended by D’s counsellor.

6. THAT as soon as practicable, the mother:

   6.1.complete a parenting course at M Health Services if she has not already done so; and

   6.2.attend confidential counselling at M Health Services in respect of personal and parenting issues.

7. THAT the mother use her best endeavours to keep the father informed about educational and health issues relating to D.

8. THAT at his initiative, the father is invited to keep the mother advised in writing of his current address and other contact details from time to time.

9. THAT the issues of the father spending time with and communicating with D, be wholly reserved.

10. THAT paragraph 7 of the orders made in this Court on 30 March 2007 be continued in full force and effect until further order.

11. THAT the order for the appointment of the Independent Children's Lawyer be discharged forthwith.

12. THAT pursuant to section 65DA (2) and section 62B 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 Annexure A and these particulars are included in these orders.

13. THAT a sealed copy of these orders be served forthwith by the solicitors for the mother upon the father, at an address care of his father Mr H, at E.

14. THAT all extant applications (including the form 1A of the mother filed 11 July 2007) be otherwise dismissed and removed from the pending cases list and from the Children’s Cases Program.

15. THAT the hearing date of 26 and 27 July 2007 in the Children’s Cases Program be vacated.

16. THAT the ex tempore reasons for judgment be transcribed and placed on the court file and be made available to all parties.

IT IS CERTIFIED:

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of counsel for the mother and solicitor appearing as counsel for the independent children's lawyer.

IT IS NOTED:

A.THAT the Independent Children's Lawyer does not oppose these orders.

B.THAT on 16 April 2007, the Applicant Father filed a Notice of Discontinuance in respect of his Application for Interim and Final orders. 

C.THAT the Independent Children's Lawyer has expressed to the Court a view that recommendations number 7 and 8 in the updated family report of Mr E dated 23 May 2007 not be implemented at this time.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 438 of 2006

MS BRUNTON

Applicant

And

MR HIRST

Respondent

And

INDEPENDENT CHILDREN’S LAWYER:

REASONS FOR JUDGMENT

1. The matter of Hirst and Brunton and the Independent Children's Lawyer was before me as part of the children's cases program.  The matter has been before me on a number of earlier occasions at which the father was present in court. 

2. The matter has been listed today because the father has filed a Notice of Discontinuance on 16 April 2007.  He has also advised the court and when last in Court myself personally as the presiding Judge that he does not want in any way to be further involved in issues of spending time with or communicating or in other ways being part of his daughter's life and upbringing.  That in itself is a tragic circumstance, but the father's reasons had earlier been detailed to the court and they revolved around compliance with court orders and what he saw as overburdening questions of control, supervision and specific times and circumstances for he to spend time with D.  He simply refused to accept any proper limitation or guidance to such time to be spent and in my opinion, certainly did not elevate the best interests, welfare and concern of the child to any paramount consideration.

3. The matter has been listed today.  Ms Brooks appears as counsel for the respondent mother who is in court.  Mr Lynch appears as the Independent Children's Lawyer.  The father was called out of court and made no appearance.  I propose to finalise this matter.  It is just and appropriate that final orders be pronounced resolving this case, giving some certainty to the lives of the mother and the child, D, and also removing the case from the list of matters awaiting hearing.

4. I have been presented with a document which includes the final orders sought on behalf of the mother.  These orders will not be made by consent.  I have suggested a number of variations to the orders this day and the orders that I will now pronounce will be the proposed orders as amended after this ongoing discussion.  The orders are not consented to but not opposed by the Independent Children's Lawyer.

5. I conclude that what is in the best interests of D are orders that she live with the mother, who shall have sole parental responsibility for her care, welfare and upbringing.  The child is to have all access to counselling and other support services reasonably available.  The father's time to be spent with or his level of communication with, D is reserved, but clearly the ball is wholly and squarely in his court to somewhat open his eyes to the reality of the circumstance and to enjoy time with D, if that be in her best interest.

6. I am instructed that the father has changed his telephone number and his address and that recently he has purportedly married his partner, Ms J.  It is proposed that he be served by the wife's solicitors with a sealed copy of the order care of his father's own address in E.  I will require that service.

7. I do not propose to make any order for liberty to apply and I do specifically propose to make orders that are final and to remove this case from the list of cases awaiting hearing.  It will be removed from the children's cases program.  All extant applications will be dismissed.  The usual order as to the obligations of these orders and the available family services that are required pursuant to the provisions of section 65DA(2) and section 62B will be made and the fact sheet will accompany these orders. 

8. Having heard from Mr Lynch, I propose to require a further notation to the order to the effect that it would now be inappropriate to implement or to encompass the final two suggestions that are made by Mr E, family consultant, in his report of 30 March 2007.

9. For all of those reasons and bearing in mind the paramount welfare of the child and having particular regard to the primary and additional considerations as provided for in section 60CC of the Family Law Act1975, I do conclude that these orders are proper, that they are in the best interests and welfare of D and accordingly I pronounce these orders. 

10. I formally request the solicitor for the mother to engross these orders this day and when confirmed by Mr Lynch that they represent orders that reflect what has been discussed in court today, they be forwarded by email transmission to my associate this afternoon.  The orders will be effective when I have signed the original and an amended copy of these orders.  I will as a matter of courtesy have my associate send a copy of the orders to the father care of his father's address but that does not diminish the obligation for service that I impose upon the mother's solicitor.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: 

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as BRUNTON & HIRST