Deacon and Castle

[2016] FamCA 1011

FAMILY COURT OF AUSTRALIA

DEACON & CASTLE [2016] FamCA 1011

FAMILY LAW – CHILDREN – Undefended hearing – Where father has disengaged from the proceedings – Where no appearance by father – Where appropriate to proceed on an undefended basis – Consideration of children’s best interests – Where father is restrained from contacting the children – where children to live with the mother and she have sole parental responsibility

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Goode & Goode [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GRR [2010] HCA 4

APPLICANT: Ms Deacon

RESPONDENT: Mr Castle

INDEPENDENT CHILDREN’S LAWYER: Christine Hafey

FILE NUMBER: (P)SYC 5348 of 2008

DATE DELIVERED: 25 November 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Justice Foster

HEARING DATE: 10 October 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Watts McCray Lawyers

RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta Family Law

Orders

1. That all previous parenting orders be discharged.

2. That the mother Ms Daley have sole parental responsibility for the children X born on … 2002 and Y born on … 2003.

3. That the children live with the mother.

4. That the children X born on … 2002 and Y born on … 2003 spend no time with the Respondent Father.

5. Pursuant to section 68B of the Family Law Act 1975, the Father shall be restrained from:-

   (a)Contacting the Applicant Mother, Ms Deacon by any means other than provided for herein;

   (b)Contacting the children X and Y by any means other than provided for herein;  

(c)Attending at or being within 200 metres of the Applicant Mother’s home or the school attended by the children, X and Y.

1. That the father shall be at liberty to send to the mother at her residential address gifts and/or cards for the children on the occasion of their respective birthdays, Christmas or any other special occasion provided that such cards or gifts are always contained in an envelope or parcel addressed to the mother and that the mother shall be at liberty to discretely open such cards or gifts and if appropriate provide them to either or both of the children.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: (P)SYC 5348  of 2008

Ms Deacon

Applicant

And

Mr Castle

Respondent

REASONS FOR JUDGMENT

1. These are parenting proceedings commenced by the applicant mother by application filed on 21 January 2014 in the Federal Circuit Court of Australia.

2. The proceedings were transferred to the Family Court of Australia on 4 April 2014.

3. The application concerns the children X born in 2002 now 14 and Y born in 2003 now 13.

Context

1. The applicant mother is aged 42. The respondent father is aged 50.

2. The parties commenced cohabitating in 1995.

3. The parties separated on 13 July 2008.

4. Parenting orders were made by consent on 1 December 2009 for the parents to have equal shared parental responsibility, for the children to live with the father and for the children to spend time with the mother on alternate weeks. These orders were not complied with according to the mother.

5. On 4 July 2013 final parenting orders were made by Judge Harman after a defended hearing in the Federal Circuit Court at Parramatta that provided for the mother to have sole parental responsibility for the children, that the children live with the mother and that the respondent father’s time with the children be suspended until 7 December 2013, after which time he have contact with the children each Saturday and then alternate weekends and during school holidays.  

6. Subsequent to events occurring after 4 July 2013, the applicant mother filed the present application.

7. A Response to the Initiating Application was filed by the respondent father on 28 January 2014.  In that Response the father sought orders that the children live with him, that there be a gradual transition of access to the children by the mother through a contact centre over a period of 18 months, that the mother have phone contact with the children once a week, that the mother be restrained from using physical discipline toward the children, that the mother participate in an anger management program, that the mother be allowed to send correspondence to the children, and that the mother and father are restrained from denigrating each other in the presence or hearing of the children.

Procedural fairness

1. On 28 January 2014 orders were made by Judge Harman for the children to be delivered to the Federal Circuit Court at Parramatta. Further orders were made by Judge Stewart for the children to live with the mother and for the father to be restrained from approaching the children. The Court noted that the father absented himself from the Court during the delivery of these orders.

2. On 8 September 2014 both the mother and the father appeared with legal representation. 

3. On 18 November 2014 the mother appeared with representation and the father appeared in person and the proceedings were adjourned to 26 November 2014. On the same date a Notice of Ceasing to Act was filed by the solicitors for the father.

4. On 26 November 2014 both the mother and the father appeared with representation and it was ordered that a single expert report be prepared to assist the Court regarding the welfare of the children.

5. On 5 December 2014 orders were made following an interim hearing (Deacon & Castle (2014) FamCA 1080) as follows:

   (1)That orders 7, 8, 9, and 14 made on 4 July 2013 by His Honour Judge Harman be suspended,

   (2)That pursuant to section 68B of the Act the father Mr Castle shall be and is hereby restrained from:

   (a)Approaching or being within 500m of the children X and Y;

   (b)Contacting by any means whatsoever, save as provided for herein, the children X and Y; and

   (c)Being at or within 500m of the mother’s home or the children’s school.

   (3)That the father shall use his best endeavours to restrain or prevent any person acting on his behalf or in his interest from contacting or approaching the children in any way whatsoever.

   (4)That the father shall be at liberty to send to the mother at her residential address gifts and or cards for the children on the occasion of their respective birthdays, Christmas or any other special occasion provided always that such cards or gifts are contained in an envelope or parcel addressed to the mother and that the mother shall be at liberty to discretely open such cards or gifts and if appropriate provide them to the children or either of them.

6. The reasons for judgment outlined the history of litigation in relation to the children.

7. On 4 February 2015 a letter of instruction and relevant material was sent to Dr Q, the single expert appointed by the Court on 26 November 2014.

8. Upon enquiries from the ICL in July 2015 it was determined that the matter had been overlooked in Dr Q’s office and that an appointment could not be made until early 2016.

9. As there had been no agitation by or on behalf of the father regarding appointments with Dr Q, the ICL attempted to make enquiries with the father’s legal representative to ensure he was in a position to engage Dr Q. Subsequent to these enquiries, the ICL concluded that the father did not have legal representation and appeared to have disengaged from the proceedings.

10. On 4 May 2016 the ICL made an application for the matter to be relisted.

11. The matter was relisted for Thursday, 19 May 2016.

12. On 19 May 2016 the father failed to appear nor was there any appearance on his behalf. Orders were made as follows:

    (1)The matter is adjourned to Wednesday 15 June 2016 at 9:30am for a further Case Management hearing.

    (2)The Respondent Father Mr Castle be in attendance before the Court in person on the adjourned date.

    (3)In default of there being any appearance by the father on the adjourned date the Court will give consideration to striking out his response in these proceedings and the making of appropriate directions for the Mother’s application for final parenting orders to proceed on an undefended basis.

    (4)The Independent Children’s Lawyer write to the Father at his last known residential address being K Street, Suburb T NSW … forwarding to the Respondent Father a sealed copy of the orders made today and advising the Respondent Father that in default of his personal appearance before the Court at 9:30am on 15 June 2016 that his response filed in these proceedings will be struck out and the Mother’s application for final parenting orders will proceed to an undefended hearing.

    (5)The Independent Children’s Lawyer forward such correspondence to the Respondent Father by ordinary prepaid post.

13. On 15 June 2016 it was noted that the father had been informed of the date of listing and he failed to appear. It was ordered that a limited issues report be prepared and it was noted that following the release of the limited issues report it was proposed that the matter be listed for the purposes of an undefended hearing.  

14. The Court was satisfied on 15 June 2016 that all appropriate attempts had been made to notify the father and that in the circumstances it was appropriate for the matter to proceed on an undefended basis. The matter was later listed for undefended hearing on 10 October 2016.

15. On 10 October 2016 there was no appearance by the father who had been notified of the listing. The matter proceeded on an undefended basis and judgement was reserved to a date to be fixed.

16. In all of the circumstances it was appropriate that the matter proceed on an undefended basis, the father having been afforded ample opportunity to engage in the proceedings. 

The mother’s documents

1. The mother relied upon her affidavit filed on 8 September 2016.  

Events leading to suspension of the father’s time

1. The children currently live with the mother and have had no contact with the father since 28 January 2014.

2. On 7 December 2013, the father’s time with the children resumed. The mother asserts that during the changeover at the father’s property the father hugged the children, began to cry and said words to the effect of “Tell your mother while she is here what she has done to you”. The children were returned to the mother’s property that afternoon by the father.

3. After the changeover on 14 December 2013, two police officers came to the mother’s property and stated that a call had been made to the police regarding the safety of two children by a woman who suspected violence because the children looked unhappy returning to the mother’s property. The police officers spoke with both children and left without taking any further action.    

4. In her affidavit the mother attached a copy of an email from Y to her father from 14 December 2013 in which Y states “I just wanted to say I miss you and I love you. P.S. I will do what you said”.

5. At the mother’s property during the changeover on 21 December 2013 the mother asserts that she attempted to provide the father with the children’s school reports and the father stated that he was not interested.

6. On the morning of 28 December 2013 the mother asserts in her affidavit that as she was driving the children to the father’s house, Y asked “what time is it?” and when the mother replied that it was 9.57, Y whispered to X “We are never on time like Dad said”. The mother asserts that they arrived at 10.01 am. At 4.50 pm that day the father returned with the children to the mother’s property in his van. The mother asserts that Y fell behind herself and X when walking back to the mother’s house and the father said to Y “I am leaving now are you staying or what? If you’re coming with me I am going otherwise you are staying here”.   

7. The mother grabbed X’s wrist and asked her to wait before going to the father’s van and asking Y not to get in. The mother asserts the father pushed Y into the van then came towards the mother. The mother asserts X then ran to the van and the father pushed X into the van.

8. The mother asserts the father started the van and said words to the effect of “The children love me not you. I am going to the police. I have so much to tell them about what goes on here”. When the mother’s partner shouted “What’s your problem?” the mother asserts the father parked the van and ran towards the mother’s partner. The mother stepped between the father and her partner and asked the father to leave. The father told the mother that she could find him at the police station.  

9. The mother contacted Suburb I Police Station. The police attended the father’s home but could not locate the father or the children. The mother spoke to Constable N on the phone later that evening and was told that the children had been located at Suburb I Hospital. The constable informed the mother that she would need to take the matter to court.

10. The mother rang Suburb I Hospital and spoke to a Dr O who informed her that X had injured her wrist and had returned home in a splint but that the injury was not serious. Dr O also informed the mother that the father had reported the incident to the Department of Family and Community Services.

11. The mother made numerous attempts to contact the children after 28 December 2013. On 4 January 2014 the mother received an email from the father stating that the children had refused to get in the car when he attempted to return them to the mother. On 10 January 2014 the mother spoke to the children by telephone and the children said that they wished to live with their father.   

12. On 11 January 2014 the father arrived at the mother’s property at 4.50 pm with the children in his van. The father asked the children if they were going, both children shook their heads and the father drove away.

13. On 18 January 2014 the father arrived at the mother’s property with the children in his van. The mother asserts the father prompted Y to say “We don’t want to come with you” and prompted X to say “I don’t want to come with you after what you did to me”. The mother asserts the children looked distressed and that X had her arm in a sling and looked sick.  The father then drove away.

14. The mother filed her Initiating Application on 21 January 2014. The father’s Response was filed on 28 January 2014.  

15. Upon having the orders of Judge Stewart made on 28 January 2014 explained to them, both the children became upset and refused to accompany the Family Consultant with them in the Court child-care room to the foyer. X shut herself in the child-care area bathroom and refused to come out. After speaking to her mother Y accompanied her mother to the car. Court security staff became involved and X left the Court with her mother but remained distressed and claimed she was fearful of her mother.   

16. Subsequent to the orders of Judge Stewart on 28 January 2014 the children have not seen nor had contact with their father.

17. The mother reports that the children have settled and are doing well at school. 

18. The children have engaged in a Unifam counselling session on 30 January 2014 and have been thereafter involved in the Kids Connect Program.

19. In October 2014 X developed a hip problem that required hospitalisation and surgery. The mother’s solicitors advised the father of this on 30 October 2014. There was no contact from the father.

The Limited Issues Report

1. After interviewing the mother, the mother’s partner and the children, (the father failing to attend) the Family Consultant made the following evaluations:  

   50. It appears that, despite an initially difficult transition, [X] and [Y] have adjusted to living with [Ms Deacon]. The children presented as having positive and established relationships with [Ms Deacon] and there were no concerns raised during the assessment regarding their wellbeing in her care.

   51. [X] and [Y] present as desirous of a relationship with [Mr Castle] with [X], in particular, presenting as highly concerned about [Mr Castle’s] wellbeing. While this may be due to factors such as [X’s] personality or the seemingly abrupt cessation of time, this concern may also be indicative of a parentified or enmeshed dynamic within [X] and [Mr Castle’s] relationship. Determination of this, however, is beyond the scope of this assessment.

   52. It is noted that the Reasons of Judgment by Justice Foster, dated 5 December 2014, state that Judge Harman found in previous proceedings that “the nature of the enmeshed relationship [between X and Mr Castle] represents an unacceptable risk to [X] and [Y]”. Therefore, in order to recommend that the children spend time with [Mr Castle], the Court would need to be satisfied that the children would not be at unacceptable risk of harm in his care.

   53. Given that [Mr Castle] did not attend interview, his proposals regarding the children are unknown. It is acknowledged that it may therefore not be practical for orders to be made for the children to spend time with [Mr Castle] even if they are deemed not at unacceptable risk of harm in his care.

   54. If it is determined that it is not in the children’s best interests to spend time with [Mr Castle], it is likely to be of benefit to the children if Orders were to be made that provide for the exchange of cards and gifts on special occasions, including birthdays and Father’s Day. It would be further recommended that any correspondence be via [Ms Deacon] in order for some monitoring of the appropriateness of content to occur.

   55. Irrespective of the orders for the children, it is highly likely to be in the children’s best interests to be provided with a non-blaming narrative regarding decisions made and, as is developmentally appropriate, the reason(s) for any decisions made. Ideally, this would be provided by [Ms Deacon] with support, as required, from the Independent Children’s Lawyer and/or Family Consultant. In the event that the children were to spend time with [Mr Castle], it would be of particular importance that both parents were to provide a consistent narrative to the children. If the children were provided with differing accounts, particularly if these were blaming of the other parent, it is likely to have a detrimental impact on the children’s psychological wellbeing and parent-child relationships.   

Parenting

1. The relevant principles in relation to parenting and interim proceedings are well settled in Goode & Goode [2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.

2. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

1. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

2. Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

Parental Responsibility

1. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:

   a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];

   b)In interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)]; and

   c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].

2. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. If an order for equal shared parental responsibility is made by consent the Court may but is not required to consider equal or substantial and significant time (s 65DAA(6)). There is no such consent in this matter.

3. Given the father has failed to engage with the children since 28 January 2014, and has failed to engage with these proceedings since at least 19 May 2014, it is clear in this matter that it is in the best interests of the children that the presumption will not apply.

4. Accordingly, there is no need to consider equal or substantial and significant time. Appropriate time will be determined according to the best interest considerations.  

Best Interests

The Primary Considerations: s 60CC(2)

1. The primary considerations are:

   a)The benefit to the child of having a meaningful relationship with both of the child's parents; and

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).

Section 60CC(2)(a) – “meaningful” relationship

1. In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:

   [26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. In McCall & Clark [2009] FamCAFC 92, the Full Court at [118] accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:

   … the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…

3. The children are now well settled in their relationship with the mother following the ructions of 2014. It is clear that the continuation of that primary relationship is important for the children. They have, it appears, thrived in their mother’s care.

4. Both children are desirous of a relationship with the father. However, there are clear concerns regarding the father’s enmeshment of the children in his conflict with the mother that presents as clear risk to the children’s ongoing relationship with the mother as their primary carer.  

5. It is clear that having some contact/communication from their father will be beneficial for both children should the father elect to do so and this relationship could be facilitated through the exchange of cards and gifts between the children and their father on special occasions. This is supported by the Family Consultant.  

Section 60CC(2)(b) – need to protect

1. This is an overwhelming consideration and must be given priority over issues as to relationship. In the light of the matters discussed above there are risk factors involved in allowing the children to have contact with the father. The father’s lack of engagement in the proceedings and with the family consultant leaves the risk factors identified above unaddressed.

2. This consideration, which is given primacy, is supportive of the orders sought by the mother.

The additional consideration: s 60CC(3)

1. Section 60CC(3) sets out the additional considerations:

   a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   b)        The nature of the relationship of the child with:

   i)        Each of the child's parents; and

   ii)Other persons (including any grandparent or other relative of the child);

   c)The extent to which each of the child's parents has taken, or failed to take, the opportunity:

   i)To participate in making decisions about major long-term issues in relation to the child; and

   ii)       To spend time with the child; and

   iii)      To communicate with the child;

   ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   i)        Either of his or her parents; or

   ii)Any other child, or other person (including any grandparent or other relative of the child);

   with whom he or she has been living;

   e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   f)        The capacity of:

   i)        Each of the child's parents; and

   ii)Any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   h)        If the child is an Aboriginal child or a Torres Strait Islander child:

   i)The child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   ii)The likely impact any proposed parenting order under this Part will have on that right;

   i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   j)Any family violence involving the child or a member of the child's family;

   k)If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   i)        The nature of the order;

   ii)       The circumstances in which the order was made;

   iii)      Any evidence admitted in proceedings for the order;

   iv)Any findings made by the court in, or in proceedings for, the order;

   v)         Any other relevant matter;

   l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and

   m)       Any other fact or circumstance that the court thinks is relevant. 

2. Many of the considerations above are relevant in the context of the background matters discussed. They are all indicative of orders being made as sought by the mother and supported by the ICL.

3. In the Specific Issues Report dated 16 August 2016, the Family Consultant stated that both children were desirous of a relationship with their father. In regards to X, the Family Consultant opined:

   40. [X] confirmed that she wanted to see [Mr Castle] but said that she has no views regarding specific ‘live with’ or ‘spends time with’ arrangements and that she loves both parents. When asked how she would feel if the current arrangements continued, [X] stated “I don’t know, I think I’d go my whole life without knowing [Mr Castle is] okay”. She added that this would “tear someone down”. [X] said that, she would “just be able to catch up on everything I’ve missed out on” and could tell that [Mr Castle] is okay if she were to spend face-to-face time with him.

   41. [X] identified that she thinks about [Mr Castle] a lot and reiterated that she does not know if he is okay. She said that this “comes up at school a lot” because other students talk about their fathers and “I’m just sitting here like, I don’t know anything”…

4. In regards to Y, the Family Consultant stated that the only negative aspect of the current arrangements according to Y is that “we don’t get to see Dad”. The Family Consultant further stated that:

   48. [Y] confirmed that she wants to see [Mr Castle] and expressed a preference to reside in an equal time arrangement because she would “get to see both [parents] equally”. She said she would be “upset” if the current arrangements continue and, if there were to be non-direct contact (letters, cards) only, “I would still be upset but it would be okay”. [Y] stated that she would feel “like it’s unfair” to her and [X] if they were to spend limited periods of time with [Mr Castle].  

5. Given the ages of the children, 15 and 13, this Court should give their views some weight. However, the potentially enmeshed relationship between X and her father also needs to be taken into consideration. When the children’s views are taken in conjunction with the recommendations of the Family Consultant, it is clear that at least a limited relationship between the children and their father needs to be facilitated. This is supportive of the orders sought by the mother in regards to allowing the father to send the children correspondence through the mother.

6. It is also clear from the Specific Issues Report that the children have a good relationship with their mother, with neither child reporting worries or concerns about their mother.

7. Since January 2014, the children have had no contact with the father and the father has failed to participate in decisions regarding the children. This failure to participate is particularly clear from the father’s lack of contact with the mother or the children when the mother informed his solicitors of X’s hospitalisation in October 2014.

8. As the children currently reside with the mother and have no contact with the father, the orders sought by the mother do not change the children’s current circumstances. While both children have expressed a desire to change the current arrangement regarding time with their father, the father’s disengagement from proceedings prevents this and, as such, this consideration is supportive of the orders sought by the mother.

9. It is clear from the Specific Issues Report that the mother has the capacity to provide for the needs of the children and that there are no concerns for the children’s welfare in her care. The father’s capacity is unknown.  

Orders

1. Orders will be made as set out at the forefront of these reasons for judgment.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 25 November 2016.

Associate: 

Date:  24 November 2016