Crittenden and Pitfield

[2010] FamCA 317

FAMILY COURT OF AUSTRALIA

CRITTENDEN & PITFIELD [2010] FamCA 317

FAMILY LAW – CHILDREN – Parenting orders in undefended hearing – uncontested evidence – weight to be given – procedural fairness to the respondent

Family Law Act 1975 (Cth) ss 60CA, 60CC(2), 60CC(3)

APPLICANT: Mr Crittenden

RESPONDENT: Ms Pitfield

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of NSW

FILE NUMBER: SYC 2992 of 2009

DATE DELIVERED: 16 April 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 16 April 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	L P Alidenes & Company
COUNSEL FOR THE APPLICANT:	P Livingstone

SOLICITOR FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: M Alex

Orders

1. That all previous Orders and Directions be discharged.

2. That the father has the sole parental responsibility for the child … born … May 1999.

3. That the child spends such time with the mother as the parties may agree and in default of agreement as determined by the father.

4. That the father ensures the child continues to attend upon his school counsellor.

5. That the father implements all reasonable recommendations as may be made by the said school counsellor.

6. That the father makes the child available for telephone communications at any reasonable time or times as the mother may nominate.

7. That the father cause a sealed copy of the Orders made this day and, subsequently certified reasons for judgment to be personally served upon the mother within seven (7) days of such documents being received by his legal representatives.

8. That all documents produced on subpoena may be returned to the person who produced the same.

9. That the proceedings be removed from the active pending cases list.

10. 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.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2992 of 2009

MR CRITTENDEN

Applicant

And

MS PITFIELD

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings, parenting orders are sought by the father in relation to the child of the marriage, … (who for convenience I shall refer to as “the child”), 10 years of age having been born in May 1999. 

2. The parties had been engaged in contested parenting proceedings in this Court.  However, the matter proceeds before me on an undefended basis as a consequence of a notice of discontinuance having been filed on behalf of the mother on 18 February 2010. 

3. When the matter was listed before me for the first day of the less adversarial trial procedure, the father was represented by counsel. There was no appearance by or for the mother.  The independent children’s lawyer appeared.

4. Previous directions for the filing and service of parenting questionnaires had not been complied with by any of the parties.  I was informed on that occasion that the father would be seeking orders different to those set out in his Initiating Application, which had been filed on 21 May 2009. 

5. Counsel had submitted that the matter should proceed nonetheless, because the mother had discontinued her response and, consequently, it was open to me to make the orders which were now to be sought by the father, notwithstanding that the mother would not have either oral or written notice of those parenting orders to be sought by the father.

6. Concerns were voiced by the independent children’s lawyer in relation to whether there would be sufficient evidence before me to make orders in the best interests of the child, and that it may be in his best interests for a further expert’s report to be prepared. 

7. After hearing submissions about those matters, I determined that the matter would proceed on certain conditions.  I did not accede to the application for a further expert’s report.

8. It was clear to me, from the Child Responsive Program Memorandum of 15 October 2009 being Exhibit 1, that the child had significant emotional issues.  Taking into account the interviews held by the family consultant for the purpose of that memorandum and subsequent interview with Dr R, child expert psychiatrist, reflected in his report of 2 February 2010 being Exhibit 2, I decided that the child having to face further interviews with one or other of those experts may not be in his best interests.

9. It was clear that it may very well be in his best interests to have this litigation concluded as soon as possible, subject to there being sufficient evidence before me upon which orders may be made in accordance with section 60CA of the Act, namely that the paramount consideration is the best interests of the child.

10. On 25 March 2010 I adjourned the proceedings for hearing before me today.  I directed that the father cause an affidavit of all matters upon which he sought to rely in relation to section 60CC(2) and sub-section (3), together with an annexure setting out the orders now to be sought by him, to be filed and served on or before 4.00pm, 8 April 2010.  I gave leave for further subpoenas to produce documents to be issued and served.  In addition, I ordered that the solicitor for the father cause written notice of the orders made to be personally served on the mother on or before 5.00pm 29 March 2010.

11. I have read affidavits of service of Mr L filed 15 April 2010 and the affidavit of the father’s solicitor Amanda Jane Alidenes sworn 16 April 2010. 

12. I am satisfied on the basis of the material contained in all of those affidavits that the orders I made have been complied with.  As a consequence, the mother has received reasonable written notice of the orders to be sought by the father today. 

13. When the matter was called on for hearing this morning, there was no appearance by or for the mother.  Consequently, the matter has continued to proceed on an undefended basis.

14. The independent children’s lawyer has filed in court a minute of orders sought by her.  No previous written or oral notice was given to the mother of the orders so sought.  I have had regard to that minute of order on the basis that there may well be orders sought which would ultimately persuade me to adjourn the matter further or, otherwise to take into account as ancillary to the substantive orders sought by the father.  As I pointed out to the independent children’s lawyer, and which she quite properly acknowledged, it is a fundamental element of natural justice that a party is given proper notice of orders to be sought in the proceedings.

15. Notwithstanding that the mother has discontinued, she was entitled to know of different orders that might be sought on the hearing because that, in turn, may have caused her to appear either in person or by a legal representative.  However, that has not occurred as I have previously referred to and I am only taking into account the independent children’s lawyers orders sought on the limited basis to which I have referred. 

16. I will make orders as sought by the father in Annexure “A” to his Affidavit sworn 7 April 2010.  My brief reasons for doing so are as follows.

Historical background

1. The circumstances in relation to the child since separation have markedly changed, particularly this year. 

2. The background to these proceedings is that the parties cohabited for a period of approximately two years, which commenced in 1997. 

3. They separated in September 1999. 

4. They have lived separate and apart from each other continuously since that time. 

5. The parties married in September 1999. 

6. A Divorce Order was made on 16 May 2001 which took effect from 17 June 2001.

7. The father is 45 years of age.  The mother is 43 years of age. 

8. They live within reasonable proximity of each other. 

9. For a considerable period of time, the parties had equal shared time of the child, being in his or her care respectively.  Since the proceedings were instituted, amongst the parenting orders that have been made and directions given have included the following.

10. On 3 June 2009 interim orders were made by consent which provided for the appointment of the independent children’s lawyer, the receipt of undertakings by each of the parties in relation to abstaining from the consumption of alcohol or marijuana whilst having the care of the child, and in relation also to telephone communication. 

11. On 22 July 2009 the operation of previous parenting orders was suspended by consent.  In addition, provision was made for continuation of certain of the previous undertakings.  Orders were made in relation to care of the child on certain specific occasions such as Christmas Day, Mother’s Day, Father’s Day, place of changeover of care of the child from one parent to the other and for the child to live with one parent or the other during alternate weeks.

12. On 23 November 2009, a single expert Dr W was appointed to prepare a report in relation to the matters specified in those orders.  Ultimately, a report was prepared by Dr R, to which I have made previous reference. 

13. On 5 March 2010, it was noted that the mother had filed a notice of discontinuance of her response and that the independent children’s lawyer informed the court that the mother no longer wished to participate in the report process. 

14. On 25 March 2010, orders were made, previously summarised by me.

Conclusion

1. The substantive evidence before me comprises Exhibits 1 and 2, as well as the Affidavit of the father sworn on 7 April 2010.  I am satisfied that the evidence enables me to make the following findings.

2. That the child has a close relationship and attachment with the father.

3. That the father provides for the child in terms of all of his needs, whether physical, intellectual or, emotional.

4. That the child has lived with the father continuously since on or about 8 February 2010.

5. That the father has sought to continue to facilitate and encourage the relationship between the child and the mother.  His evidence demonstrates the manner in which he has acted to enable that approach to be implemented.  The father appears willing to use his best endeavours to ensure that, so far as is possible to do so, the child continues an appropriate parental relationship with the mother.

6. That the mother continues to have serious health issues in relation to alcohol abuse as well as other medical issues referred to in Exhibit 1 and touched upon in Exhibit 2.

7. That the change of care of the child, from alternate weeks with each parent to the primary care of the father, does not appear to have occurred in controversial circumstances. 

8. I do not have any evidence of the mother seeking to change the situation in terms of care that has continued now for a little over two months.  Indeed, her absence of commitment to make such changes, at least so far as these proceedings are concerned, is demonstrated by her having had filed a Notice of Discontinuance and the lack of any appearance before me on either 25 March 2010 or today, notwithstanding the written notice that she has received, which was provided to her in a reasonable time prior to the listing of this matter today.

9. The child continues to have some serious behavioural problems.  On the evidence before me that appears to have been caused by parental conflict as well as, in particular, the mother’s unacceptable behaviour towards the child set out in the affidavit of the father to which earlier reference has been made.

10. The father has provided a stable environment for the child, which suggests that this has been of benefit to him now and in the future, in contrast to the instability to which the child has been exposed in more recent times during last year and beforehand.

11. The father has demonstrated willingness to continue to facilitate a parental relationship with the mother, as set out in his Affidavit, is a matter upon which I attach considerable weight.  As a consequence, I consider it to be in the child’s best interests that the extent and frequency of further time that the child may spend in the mother’s care, whether supervised or not, may be left on a responsible basis with the father for the foreseeable future.

12. I am concerned, nonetheless, that the mother be able to seek the setting aside or variation of all or any of the orders that I will make.  For that purpose, I will make further orders providing for personal service upon her of a sealed copy of the orders and reasons for judgment so that she may make such application as she may be advised on seven days written notice.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Date:  27 April 2010