Chester and Chester

[2007] FamCA 141

FAMILY COURT OF AUSTRALIA

CHESTER & CHESTER [2007] FamCA 141

FAMILY LAW - CHILDREN - With whom a child shall live - Best interests of a child -  Non-appearance by father

APPLICANT: MRS CHESTER

RESPONDENT: MR CHESTER

INDEPENDENT CHILDREN’S LAWYER: Ms Gelston

FILE NUMBER: HBF 765 of 2006

DATE DELIVERED: 29 January 2007

PLACE DELIVERED: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 29 January 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Mussared

SOLICITOR FOR THE RESPONDENT No appearance

Orders

1. THAT all previous parenting orders be discharged.

2. THAT the mother have sole parental responsibility for the children D born in August 1993, L born in May 1995, T born in December 1997 and I born in June 2000 (“the children”).

3. THAT the said children live with the mother.

4. THAT the children spend time with the father as agreed in writing with the mother and in the event there is no agreement or further court order then such time to be supervised with the children at the Children’s Contact Centre Hobart as follows:-

   (i)that if the children live interstate then the father is to arrange the time at the Children’s Contact Centre and giving the mother one months notice in writing in advance as to his intention to spend time with the children and the proposed dates and times;

   (ii)that if the children live in Tasmania then for not more than one occasion per fortnight.

5. THAT the children communicate with the father by telephone each Monday, Thursday and Friday at any time between 6.30pm and 8.00pm, such call to be initiated by the father.

6. THAT 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.

7. THAT this matter be removed from the list of cases requiring determination.

8. THAT all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

9. THAT the appointment of the Independent Children’s Lawyer be terminated as and from three months from the date of these orders.

   IT IS DIRECTED

10. THAT a copy of this order be forwarded by ordinary pre-paid post to the father by the applicant at his last known address within twenty eight days of the date of these orders.

    IT IS CERTIFIED

11. THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBF 765  of 2006

MRS CHESTER

Applicant

And

MR CHESTER

Respondent

REASONS FOR JUDGMENT  

1. This is an application made by the mother for orders with regard to the four children of her marriage to the father.  The children are D, who is aged 13; L, who is aged 11; T, who is aged nine, and I, who is aged six.

2. The proceedings were commenced on 20 April 2006 by the mother and the father has been involved at some time during the course of the proceedings. 

3. By notice of ceasing to act filed 27 November 2006, the solicitor for the father ceased to represent him and provided the last-known address of the father at N in the state of Tasmania.

4. The father was notified of today's date by letter but that letter was returned to the mother and is an annexure to her affidavit filed 15 January 2007.

5. I am satisfied on the evidence before me that the father has had an opportunity to participate in these proceedings but has chosen not to do so.  I note that he was called outside court at about 12 o'clock on 29 January 2007.  There was no appearance by him.

6. The children were represented by an independent children's lawyer who, albeit reluctantly, supports the orders sought by the mother on the basis that not only has the father withdrawn from the proceedings but it is her submission that he has withdrawn from the lives of the children.

7. The evidence before me in this undefended hearing is that contained in the affidavit of the mother and a single expert report of Dr R dated 27 September 2006.

8. The mother deposes that the parties commenced their relationship in 1992, married in 1995 and had the four children I have referred to earlier.  The parties separated in September 2002 and I am satisfied that the mother was, has been and remains the primary carer for the four children and I am satisfied on the material before me that they are all cared for by the mother.

9. It is also clear that sadly for these children, the father has not been involved in their care as he ought to have been or as was perhaps open to him.  The mother deposes that the father has had a difficult childhood himself. 

10. An effort was made for the father to see the children through a contact centre and on the evidence before me it seems he did not avail himself of that process.  I accept that the mother has encouraged the father to spend time with the children and to have a healthy relationship with them.

11. The mother deposes that, for the time being at least, any time the father spends with the children ought to be supervised.  This is because she has concerns about the father's involvement in the drug culture and in that respect she deposes that the father had been a heavy marijuana user and speed user.  She says that in December 2005 he admitted himself to a Hospital psychiatric ward and she is concerned the children will be exposed to drug use.

12. Dr R's report notes having assessed the father and the mother and the four children.  He observes a number of matters:  firstly that the father had suffered considerable abuse as a child and is at risk of developing a mental disorder later in life.

13. He says the father has, in his recent use of an antidepressant, been admitted to hospital and that was a situational problem which has not persisted.

14. He observes that the father was involved with the use of amphetamines and marijuana and that he was of the view that he is unlikely it seems to discontinue his use of drugs, and that will impact on his capacity as a parent.

15. The mother, the doctor observes, has criticisms of the father in terms of his drug use.  There are no indications of parental alienation and it is the view of the doctor the children should remain together.

16. The elder child, D, wished to reside with his father.  I note D is aged 13 and turns 14 later this year.  I note that the single expert says the expression was not well formed and was not driven by hostility towards his mother or his siblings.  It is perhaps an understandable desire of this child to know his father and perhaps a function of the changes that occur in children at that age.

17. I have had regard to the need for these children to have an ongoing relationship with both parents.  The orders the mother seeks will enable them to have an ongoing relationship with her and hopefully if and when the father becomes involves in the lives of the children again, will enable them to have an ongoing relationship with him.

18. Because of his history of drug abuse it seems necessary for their protection that there be some supervision, at least at first, with regard to the children.  I have taken into account the wishes, particularly of D.  However, I note the comments made by the expert in that regard.

19. I have taken into account all of the other factors under section 60CC(3) and (4), and in particular the failure of the father from being involved with the children except at a limited extent from the date of separation.

20. I make the comment that it is indeed sad that he did not continue in these proceedings and find a solution so that these children, who clearly want to know their father, can do so.

21. However, the children need to be out of the shadow of court proceedings and this is what will happen.  There is a presumption that parents should have equal shared parental responsibility with regard to the children.  Bearing in mind the matters under section 60CC, it seems to me that that presumption ought to be rebutted by virtue of the circumstances that these particular children find themselves in and in terms of the needs of the mother to make decisions on a regular basis with the children in the absence of the father.

22. Accordingly I will be making an order for equal shared parental responsibility and I will be making the other orders as sought by the mother.

I certify that the preceding 22 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate:   

Date:   29 January 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as CHESTER & CHESTER