Carlow and Hiron

[2010] FamCA 215

FAMILY COURT OF AUSTRALIA

CARLOW & HIRON [2010] FamCA 215

FAMILY LAW – CHILDREN – With whom a child lives – Orders in the absence of the father

Family Law Act 1975 (Cth)

APPLICANT: Ms Carlow

RESPONDENT: Mr Hiron

FILE NUMBER: BRC 3313 of 2009

DATE DELIVERED: 23 February 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 23 February 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Wilding of Legal Aid Queensland

Orders

IT IS ORDERED THAT

1. The child, A, born … April 2006, live with the mother.

2. The mother have sole parental responsibility for the long term care, welfare and development of the child.

3. The child spend time with the father, Mr Hiron, as agreed between the parties.

IT IS FURTHER ORDERED THAT

1. All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

2. The Independent Children's Lawyer be discharged.

3. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 3313 of 2009

MS CARLOW

Applicant

And

MR HIRON

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter started life involving a number of parties, each of whom were, in one respect or another, involved in the care, welfare and development of A, born in April 2006.  Subsequently, notices of discontinuance were filed by two of those parties, namely, Mr C, who is the mother's former partner, and Ms T, who is the paternal grandmother.

2. The proceedings then, as a result of those notices of discontinuance, are between the mother and father of the child. 

3. There have been two Children's and Parents Issues reports prepared by family consultant, Ms D.

4. The first, on 20 August 2009, records that the father did not attend the scheduled interview and a report was therefore prepared in his absence.   The report dated 20 August 2009 records that messages were left by the family consultant for, relevantly, the father and those messages were not returned.  Subsequently, on 1 October 2009, a report was prepared by Ms D, this time with the father's involvement. 

5. In that latest report, the family consultant says:

   It is my opinion that the relationship between the mother, the father and [A], has been characterised by conflict, substance abuse, violence and the cycle that this maintains.  This seems to have lead to the co‑parenting relationship between the parents being one of conflict and mistrust.  This, in turn, has led to little or no communication between both parties.

6. Ms D came to the conclusion that the child had been exposed to domestic violence and also records:

   [The father] presents as acknowledging that his past behaviours have been detrimental, not only to his relationship with his daughter, but has also damaged his relationship with his daughter's mother.

7. This morning, the mother appears seeking orders contained in a case information document filed on her behalf and seeks those orders in the absence of the father.

8. An affidavit of service deposes to service by post, at the father's address for service, of a letter dated 16 February 2010 under the hand of Miss Wilding, from the Legal Aid office, Queensland, the solicitor who represents the mother this afternoon.  That letter outlines a proposal for supervised visits for a period of six months.

9. The letter also points out that the mother intended to proceed to seek orders in the absence of the father or in the event that the father fails to file his response and the undertaking as to disclosure ordered to be filed by him.  The letter says:

   We shall request that the orders our client is seeking on a final basis, and as specified in her initiating application, be granted.  We enclose a further copy of that document for your attention.

10. The orders sought in the case information, filed by leave today, are slightly different to those appearing in that application.

11. It is to be noted that the application was filed at a time when the mother acted for herself and, in my view, the orders sought in the case information filed today are, in substance, the same as those contained in the initiating application filed by the mother.

12. It is very significant to note that earlier proceedings in the Federal Magistrate's Court include an ex parte application made by the mother and a recovery order.  It is also significant to note that, upon transfer of this matter to this court, the father was ordered to file appropriate initiating documentation. 

13. On 1 September 2009, the father was ordered to file a response to the mother's initiating application, together with a parenting questionnaire and undertaking as to disclosure on or before 9 September 2009.

14. On 27 October 2009, that is about five weeks after the date upon which the father was required to file those documents, the time for him to do so was extended to 4pm on 30 October 2009.  He failed to do so. 

15. On 12 January 2010 - that is some three months after the initial date upon which he was ordered to file responding material - the father was again granted the indulgence; the time for the filing of those documents was extended to Friday 22 January 2010.

16. Yet again, on 2 February 2010, the father was given a further indulgence extending the time by which he could file that responding material to

    
    

    9 February 2010. 

17. The matter comes before me for the first day of trial in accordance with this court's child responsive and less adversarial process.

18. Some two weeks after the date upon which the father was required to file those documents - pursuant to his fourth indulgence from this court - the father has again failed to do so.

19. There has been no response received by the mother's solicitor to the letter served upon him.  I directed that the father's name be called three times today at the outset of these proceedings and there was no response.  The file also records that there has been, in the past, a failure by the father to respond to telephone messages from the court. 

20. In all of the circumstances of this case, it seems to me appropriate that I ought make orders in the absence of the father.  I consider that the father has been given ample opportunity to participate meaningfully in these proceedings, but has failed, despite a number of indulgences being granted to him, to file even the most basic of material required to set the parameters of the parenting dispute to be heard by this court. 

21. I have already referred to the fact that the Children and Parents Issues Assessment refers to what can only be described as a significant history of high conflict, violence and lack of stability in the life of this yet very young child.

22. The first report records a number of assertions made by the mother with respect to the father, including acts of violence and other criminal activity.  In the second report, Ms D clearly identified that the issues of conflict, substance abuse and violence were central to the determination of orders that were in the child’s best interests.

23. Other parties who, at earlier times in these proceedings, had indicated an interest in, and preparedness to act in, A’s best interests, have now discontinued their proceedings.

24. It seems to me, in those circumstances, when consideration is given to all of the matters contained in each of the Children and Parents Issues Assessment reports, that it is appropriate for the court, in the particular circumstances of this case, to make the orders sought by the mother in the case information document filed by her by leave today, and I so order.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  22 March 2010