CAWLEY & HOWE

[2015] FCCA 1639

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAWLEY & HOWE [2015] FCCA 1639

Catchwords:
FAMILY LAW – Interim undefended hearing – serious allegations as to mother’s capacity to care for children.

Legislation:

Family Law Act 1975

Applicant: MR CAWLEY

Respondent: MS HOWE

File Number: MLC 4452 of 2015

Judgment of: Judge McGuire

Hearing date: 15 June 2015

Date of Last Submission: 15 June 2015

Delivered at: Melbourne

Delivered on: 15 June 2015

REPRESENTATION

Counsel for the Applicant: Ms Schuck

Solicitors for the Applicant: Bowlen Dunstan & Associates

Solicitors for the Respondent: No appearance

ORDERS

1. The matter proceed to hearing on an undefended basis.

2. The matter be adjourned to 18 June 2015 at 10.00 am for directions at the Federal Circuit Court at Melbourne.

3. The mother is hereby directed and required to attend Court in person on the adjourned date.

4. Until further order, the children X born (omitted) 2008 and Y born (omitted) 2010 (“the children”) live with the father.

5. These orders enable the father to collect the children from their school or similar facility the children attend.

6. The children’s time with the mother be reserved and the mother be restrained from injunction from removing the children from the father’s care or their school or any other similar facility.

7. The father’s solicitors cause a copy of this order to be served on the mother as soon as practicable.

8. A copy of the Reasons delivered this day be transcribed and placed on the Court file.

AND THE COURT NOTES THAT:

A.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 and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 4452 of 2015

MR CAWLEY

Applicant

And

MS HOWE

Respondent

REASONS FOR EX TEMPORE JUDGMENT

1. These are proceedings that concern two young children, X born (omitted) 2008, aged six years and Y born (omitted) 2010, aged five years. The children have historically lived with their mother.

2. The parties have been separated for approximately 12 months. 

3. This application was filed by the father who is represented this day.  There was no appearance by or on behalf of the mother. The application has been served upon the mother and there are service documents proving service on the mother on 20 May 2015. There are no answering documents on the court file. 

4. The father’s affidavit deposes to some serious and understandable concerns regarding the mother’s capacity to care for the children in relation to her mental or emotional state of health. The mother’s behaviour is perhaps compounded further by the fact that she allegedly has not been sending the children to school.  The father’s Counsel provided that the mother has been in regular contact with the father, with copious text messages sometimes up to the hundreds per day where the language is aggressive, threatening and corroborative of concerns regarding her mental health. A notification has been made to the Department of Human Services and investigations are on foot. There are serious allegations in respect of the mother’s drug use and involvement in the drug culture. The mother has threatened to leave the children in the father’s care and then on occasion she has threatened to deny time between the children and the father. On 7 March 2015 the mother allegedly threatened suicide. Time for the children with the father has been denied by the mother for the past seven weeks.

5. I am asked to make an order whereby the children live with the father.  Clearly, the mother is not here and Counsel for the father quite properly, in my view, suggested accompanying that order with a relisting of the matter later this week and that the mother present the children to the child care facility at this Court. 

6. The order I am asked to make is a parenting order. I must have the children’s best interests as my paramount consideration pursuant to section 60CA of the Family Law Act1975 (Cth) (“the Act”).

7. In determining those best interests I must reference the material before me and the proposals of the parties to the considerations as set out in s.60CC of the Act.

8. There are matters which do cause me concern and do so under section 60CC(2)(b) of the Act, regarding family violence and abuse, I am obliged to put considerable weight on those matters. These children are young, I am not of the view that they can self-protect if there are issues regarding their welfare.

9. I will order accordingly

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  4 August 2015