BURNS & HARMON

[2011] FamCA 106

FAMILY COURT OF AUSTRALIA

BURNS & HARMON [2011] FamCA 106

FAMILY COURT - CHILDREN – final orders – where the applicant father did not attend at the hearing and has not informed the Court as to the orders he was seeking – where the matter has an extensive history – where it is in the best interests of the children that the proceedings be finalised – orders that the children live with the mother and the children continue to spend regular time with the father

Family Law Act 1975 (Cth) ss 60CA & 60CC

APPLICANT: Ms Burns

RESPONDENT: Mr Harmon

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 2352 of 2007

DATE DELIVERED: 15 February 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE JUDGMENT OF: Burr J

HEARING DATE: 15 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:	MS Rieniets
SOLICITOR FOR THE APPLICANT:	Denise Rieniets & Assoc

COUNSEL FOR THE RESPONDENT:	Not applicable
SOLICITOR FOR THE RESPONDENT:	No appearance by the father

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	MR Winter
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Services Commission

ORDERS

1. That the children J born … June 2002 and A born … August 2004 live with the mother who shall have sole parental responsibility for them.

2. That the father spend time with the said children:-

   (a)    each alternate Saturday from 12 noon until 8.00 pm, commencing on Saturday 19 February 2011;

   (b)    at such further or other times as may be agreed between the parties.

   with handovers at the commencement and conclusion of each period of time spent by the father with the said children to occur inside the Police Station at E or such other venue as may be agreed between the parties.

3. That both parties are restrained and an injunction is hereby granted restraining either of them from criticizing, denigrating or abusing the other party or family members or friends of the other party in the presence or hearing of the said children and from permitting any other person to do so.

4. That the appointment of the Independent Children’s Lawyer be discharged.

5. That all matters be removed from the pending list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2352  of 2007

Ms Burns

Applicant

And

Mr Harmon

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. I have before me today contested proceedings between the parents of two young children J born in June 2002 and who is hence some 8 ½ years of age and A born in August 2004 and who is thus 6 ½ years of age.  Proceedings were initiated by the application of the father made on 4 May 2007.  The parties previously had some quite intensive proceedings between them as between 25 October 2005 and October 2007.  Thus there is a long history of litigation between the parties and these young children have been embroiled in that litigation for some time.  There has been a significant level of unpleasantness in the proceedings between the parties which has impacted upon the children and I note from the Court file that there have been a number of orders made over time, including location orders and recovery orders.

2. These proceedings have suffered a very slow progress through a number of hearings over a lengthy period of time due almost solely to either the father’s lack of attention to the requirements of the Court and the proceedings or to an inability on his part to secure the legal advice that he desired.  Within the context of these proceedings there have now been three Family Reports, being reports dated 10 July 2009, 17 December 2009 and 11 February 2010.  In the last of those reports the recommendations were that the children live with the mother and that the father spend time with the children on an increasing basis, subject to him satisfying a number of preconditions which included random drug testing.  That followed upon the report writer’s conclusions as contained in paragraph 54 of her report dated 11 February 2010 as follows:-

   “From this assessment, the conclusion emerged that it is likely that it is in the best interests of [J] and [A] to be able to restore their relationship with their father, and then to be able to spend alternate weekends in his care, as well as extended holiday periods.”

3. The mother effectively accepted those recommendations and the parties then attended a Legal Aid Funding Conference in order to try and resolve the issues between them.

4. There have now been hearings before this Court since the publication of the last Family Report namely on 1 March 2010, 23 June 2010, 27 September 2010, 11 October 2010, 14 December 2010 and today.  On each of the occasions mentioned prior to today’s date, the father has appeared in person.  Essentially on every occasion he indicated that he wished to secure legal advice and sought adjournments to enable him to do so.  On the last occasion, namely 14 December 2010, I ordered that he be in a position to inform the Court today exactly what Orders he was seeking.  He is not here today and has not informed the Court by any means of communication as to what it is that he seeks by way of orders with respect to his children.  Attempts were made today to contact the father by telephone on both his landline and mobile telephone numbers, but those attempts were unsuccessful.

5. I am informed by the mother’s Counsel that the father is continuing to spend his time with the children as has been ordered for some time now, which is from 12 noon until 8.00 pm each alternate Saturday, and he has been consistent with the time he has spent with his children.  I am informed that the next occasion that he is due to spend time with the children will be this coming Saturday, 19 February 2011.

6. Given the extended history of the matter, I believe it is in the best interests of the children that the proceedings be brought to a conclusion.  The father has had every opportunity to put his position before the Court and to state what other orders he may wish the Court to make over and above those which have been continuing for some time now.   The finalisation of the matter today is supported by the Independent Children’s Lawyer. 

7. Section 60CA of the Act requires my determination to have regard to the children’s interests as the paramount consideration. In my view, given that they are spending regular time with their father and the father has not indicated any different orders that he seeks from the Court, their best interests would be satisfied by the resolution of the proceedings today.

8. Given the lack of attendance by the father and the comprehensive coverage of all relevant issues impacting upon the children contained in the Family Reports I have mentioned, in my view it is not necessary for me to canvass at length all of the provisions of Section 60CC.  Suffice to say that I am satisfied in a general way that all of those matters have been considered in the aforesaid Family Reports and in the various proceedings before this Court.

I certify that the preceding eight (8) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Burr delivered on 15 February 2011.

Associate: 

Date: