CANE & CANE

[2020] FamCA 412

FAMILY COURT OF AUSTRALIA

CANE & CANE [2020] FamCA 412

FAMILY LAW – CHILDREN – Parenting issues – father suffers significant mental health issues and alcohol dependency – currently under emergency medical care after just completing several months of residential rehabilitation – proceedings on foot for several years – final orders made – application dismissed.

Rice & Asplund (1979) FLC 90-725

APPLICANT: Mr Cane

RESPONDENT: Ms Cane

FILE NUMBER: ADC 118 of 2017

DATE DELIVERED: 22 April 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Mead J

HEARING DATE: 22 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Roberts of Counsel

SOLICITOR FOR THE APPLICANT: The Family Law Project

COUNSEL FOR THE RESPONDENT: Mr Anderson of Counsel

SOLICITOR FOR THE RESPONDENT: David Burrell & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Charman

INDEPENDENT CHILDREN’S LAWYER: Adelta Legal

Orders

1. That the application filed herein by the father on 24 April 2017 be dismissed NOTING the current and ongoing mental health problems experienced by the father resulting in further hospitalisation following upon his completion of the G Program.

2. That the father be at liberty to apply by way of application in case and supporting affidavit to reinstate these proceedings in circumstances of significantly improved mental health.

3. That all previous parenting orders made herein be discharged.

4. That the mother shall have sole parental responsibility for the children of the marriage, namely:-

   (a)       Z, born on … 2009;

   (b)X, born on … 2011; and

   (c)       Y, born on … 2013

   (collectively referred to hereinafter as “the children”).

5. That the children shall live with the mother.

6. That the children shall spend time with the father as agreed with the mother in writing.

7. That the father be at liberty to send a card or letter to the children for the following occasions each year:

   (a)       Christmas; and

   (b)       the children’s birthdays

   and for the purpose of this Order, the address for the children shall be D Street, Suburb B SA (and the mother will inform the father of any new address that is to be used in substitution of the Suburb B address within 14 days of the mail address for the children changing).

8. The mother will encourage the children to send a card to the father for the following occasions each year:

   (a)       Christmas;

   (b)       Father’s Day; and

   (c)       the father’s birthday

   and the mother will facilitate the cards being sent at the children’s request.

9. The mother will facilitate the children communicating with the father by phone as requested by the children.

10. The mother shall inform the father of any serious illness or injuries sustained by the children whilst in her care.

11. That the father is restrained and an injunction is granted restraining him from:-

    (a)attending at the children’s school whilst the children are present or for any activity or event at which the children will be in attendance without the express written consent of the mother (but the father can attend at the school at times that the children are not present); and

    (b)from attending at the children’s extracurricular activities or sporting events (including but not limited to games, practise sessions and social activities) at which the children will be in attendance without the express written consent of the mother.

12. That the order for the appointment of the Independent Children's Lawyer be discharged subject to any appeal.

13. That all extant applications be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cane & Cane has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 118 of 2017

Mr Cane

Applicant

And

Ms Cane

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These proceedings have been ongoing now since 2017.

   RECORDED  :  NOT TRANSCRIBED

2. The parties were in dispute as to financial matters and parenting issues, but the ongoing dispute has concerned the time with and relationship with the father to be experienced by the children Z, who was born in 2009 – he’s now nearly 11;  X, born in 2011 – now nearly 9;  and Y, born in 2013 who has just turned seven.

3. In short, this is a matter where Mr Cane unfortunately suffers significant and serious mental health and alcohol addiction problems which have been ongoing for many years.  Post-separation the children were spending time with the father.  There was an incident where one of the children was physically disciplined.  The relationship between the children and their father continued to deteriorate unfortunately at the same time the father’s mental health continued to deteriorate, to the extent that he has now been extremely unwell for some considerable period of time.

4. He spent several months at the beginning of this year in a rehabilitation program.  He completed that program in April. Unfortunately Mr Roberts has been the bearer of bad news as his Counsel today, in that he has had a relapse.  Last weekend he was admitted to the mental health unit at the F Hospital, and is in no position to provide instructions.

5. On one or two occasions since the mother filed her further amended response in October 2019 and in particular when Mr Cane attended on his own behalf, the court has raised with him the possibility of the matter being finalised in circumstances where, in the event of his ill health significantly improving, he may be able to reinstate the proceedings.

6. It has been of concern to the court for some time that these proceedings no doubt continue to be a source of concern and worry to the mother, concern and worry to the children who refuse to spend time with the father at a children’s contact service as previously ordered, and indeed, no doubt a source of ongoing worry to the father. One would think that cannot possibly help the state of his mental health.

7. The children live with the mother.  They have done so since the parties separated.  I am satisfied that they are well-cared and provided for by the mother. The Independent Children’s Lawyer is certainly not opposed to the matter finalising on the basis that the children remain in the mother’s care.

8. The mother seeks orders that she have sole parental responsibility for the children, that they live with her and spend time with the father as agreed in writing with her.  She proposes orders in relation to liberty to the father to send a card or letter to the children for certain occasions in paragraphs 4 and 5 of her further amended response, and for the children to send a card back to the father.

9. She proposes an order that she facilitate telephone communication between the children and the father if the children request that and that the father be informed of any serious health issues.  She also sought an injunction in paragraph 8 of her further amended response restraining the father from initiating further proceedings unless certain matters were in place, and also from discussing issues with the children, denigrating the mother to the children, physically disciplining the children, driving the children in a motor vehicle not fitted with an interlock system and also from attending at their school or their extracurricular activities.

10. My view is that the orders should not be so proscriptive with respect to when the father can bring an application.  In the end, that’s a matter for him. He would know and no doubt have legal advice to the effect that if he is not significantly improved in terms of his wellbeing and his insight, it will be a difficult struggle to overcome the principles of Rice & Asplund.[1] The father has been represented throughout the majority of these proceedings.

    [1] (1979) FLC 90-725.

11. On the other hand, if there has been a very significant improvement then there may not be such an issue. I think that issue can be dealt with at the time any application is filed.  In the meantime, I agree with the mother’s position, as does the Independent Children’s Lawyer, that it is appropriate to make orders as sought by her in paragraphs 8(f) and 8(g) of the further amended response.  For those reasons, I make the orders as set out at the commencement of these reasons for judgment.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mead delivered on 22 April 2020.

Associate:

Date: 29 May 2020