CHADWICK & LACY

[2014] FamCA 768

FAMILY COURT OF AUSTRALIA

CHADWICK & LACY [2014] FamCA 768

FAMILY LAW – CHILDREN – where interim orders were made by consent – where the father has made limited effort to comply with the orders – where mother now seeks orders on final basis silent on time with the father – where father has indicated he does not wish to see the child – where father did not appear at the hearing – where hearing proceeded undefended – where orders were made in the father’s absence.

APPLICANT: Mr Chadwick

RESPONDENT: Ms Lacy

INDEPENDENT CHILDREN’S LAWYER: Colville Johnstone Lawyers

FILE NUMBER: BRC 7839 of 2011

DATE DELIVERED: 11 August 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 11 August 2014

REPRESENTATION

APPLICANT: Self-represented - no appearance

SOLICITOR FOR THE RESPONDENT: D J Gilmore & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Colville Johnstone Lawyers

ORDERS

IT IS ORDERED BY WAY OF FINAL ORDER

1. The child J, born … 2009, live with the mother.

2. The mother have sole parental responsibility for the child.

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7839 of 2011

Mr Chadwick

Applicant

And

Ms Lacy

Respondent

REASONS FOR JUDGMENT

1. These proceedings concern J born in 2009.  He has lived with his mother for the entirety of his life. This matter also proceeded before me for trial in July 2013 - after the evidence had concluded, the father and Ms Lacy also entered into interim Orders, many terms of which were made by consent.  An interim Order was made by me on 12 July 2013. 

2. On about 16 September 2013, the father’s then legal representatives informed Ms Lacy that the father no longer intended to pursue time with J and did not wish to try to reintroduce himself into J’s life.

3. This position was reiterated in an email received on 23 June 2014 by the Independent Children’s Lawyer, which contains the information that the father had decided not to pursue orders for “visitation” with all children. 

4. Ms Lacy’s legal representatives forwarded, by email to the father on 8 August 2014, a Response document and an updating affidavit filed by leave this morning.

5. As will be apparent from a perusal of the transcript of my exchange with the legal representatives, to leave such communication to such a late date has the very significant and real prospect in any matter in which it is then sought to proceed undefended (particularly a matter in which there is an unrepresented litigant in person) that, in order to comply with its obligation to afford to all parties procedural fairness and natural justice, this proceeding would have had to have been adjourned to a later date.  That clearly could not have been thought to have been in any person’s interests, nor primarily in J’s.

6. Despite the very late service, I am persuaded, given the father asserted on 16 September 2013 and reiterated in an email received on 23 June 2014, that he did not intend to seek orders in relation to J and did not intend to seek – to use his term – to reintroduce himself into J’s life, that he has been provided with both procedural fairness and natural justice.  I am therefore satisfied that it is appropriate that I continue to hear and determine this matter and dispose of it, it having commenced before me in July of last year.

7. In the circumstances already outlined, namely, that a very short period after the Consent Orders were made on 12 July 2013, the father expressed an intention not to seek to be involved in J’s life, it is, it seems to me, unnecessary to relate in any significant detail the historical matters and the matters established during the course of the hearing before me.  Insofar as it might at any time in the future be necessary, I reiterate, where relevant, those matters already outlined by me in the course of delivering oral reasons in the matter of Chadwick & Chadwick and incorporate them into these reasons in the matter of Chadwick & Lacy.

8. I reiterate again the very significant concerns the Court has held and continues to hold, in the absence of the father’s non-compliance with the July 2013 Order, about the father’s mental health functioning.  Much of the material and many of the matters already adverted to during the course of the reasons delivered for Chadwick & Chadwick are, of course, pertinent and relevant to the determination of the matter of Chadwick & Lacy.  An additional factor, however, is the father’s determination in September of last year not to seek to pursue any orders in relation to J.

9. I am well persuaded in such circumstances that final orders should be made which will see the child, J born in 2009, live with the mother.  In such circumstances, I am also well persuaded, on the evidence before me, that the presumption of equal shared parental responsibility does not apply.  I am well persuaded, given her primacy in providing for and attending to and meeting all of J’s needs, that it is in his best interests that the mother have an order for sole parental responsibility in relation to long term issues for him.

10. It is also appropriate, given that it is a matter sought by the mother in the Response filed 11 August 2014, to make an order that J spend time with the father at all such times as may be agreed between the parents.  I am confident, given the manner in which the mother has, on the evidence, approached her parenting of J, that she would not be persuaded to allow J to spend time with the father if she were not persuaded it would be safe for him to do so and beneficial for him to do so.

11. As there is always the potential that the father may at some indeterminate time in the future, apply to the Court for parenting orders in relation to J, I reiterate the importance for the father to be in a position to establish compliance on a longstanding basis - with prescribed psychiatric treatment and to be in a position to provide to the Court evidence from a treating psychiatrist which establishes both compliance with a course of treatment and stability of mood.

12. The importance of this, in the circumstances of this case, taking into account the significant and serious threats of significant and serious harm previously made by the father toward the mothers of his children, cannot be and should not be underestimated. 

13. For the reasons expressed, albeit briefly, I am satisfied the orders contained in the Response filed on 11 August 2014, are orders that are in J’s best interests and an order will issue in those terms.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 11 August 2014.

Associate:                 

Date:    11 August 2014