DEWAR & FHON

[2011] FamCA 324

FAMILY COURT OF AUSTRALIA

DEWAR & FHON [2011] FamCA 324

FAMILY LAW - CHILDREN - Child related proceedings

Family Law Act 1975 (Cth)

APPLICANT: Mr Dewar

RESPONDENT: Ms Fhon

INDEPENDENT CHILDREN’S LAWYER: Kathryn Renshall, Solicitor

FILE NUMBER: SYC 4476 of 2007

DATE DELIVERED: 24 March 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Fowler J

HEARING DATE: 24 March 2011

REPRESENTATION

APPLICANT: There was no appearance by or on behalf of the applicant

SOLICITOR FOR THE RESPONDENT: Ms Chan

INDEPENDENT CHILDREN’S LAWYER: Ms Mathias

The Court noted that:

A.The father was called at 10.06 am and the father did not appear.

Orders

1. By consent of the mother and the Independent Children’s Lawyer, Orders are made in terms of paragraphs 1 to 4 of a document titled “File Note” dated 24 March 2011, filed herein as set out hereunder:

   “1.      The father’s following applications be dismissed.

   a.        Application – Contravention 24 August 2007

   b.        Initiating Application 3 March 2008

   c.        Amended Application – Contravention 20 May 2008.

   2.The mother have sole parental responsibility of the child [B] born […] March 2002.

   3.All previous parenting orders for the father to spend time with [B] be discharged.

   4.Orders 1 to 3 of the Orders made on 6 May 2008 by the Federal Magistrates Court at Sydney be discharged and the child’s name be forthwith removed from the Airport Watch List upon service of these Orders on the Commissioner of Australian Federal Police and the Secretary of the Ministry of Immigration.”

2. The name of the child B (female) born … March 2002 be removed from the Watch List

   AND THE COURT REQUESTED that the Australian Federal Police remove the name of the child B (female) born … March 2002 from the Airport Watch List at all points of international arrivals and departures in Australia.

3. Pursuant to Section 65DA(2) and Section 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.

4. All material produced in response to subpoenas is to be returned to the party who produced it.

5. The matter is removed from the list of Active Pending Cases.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4476  of 2007

Mr Dewar

Applicant

And

Ms Fhon

Respondent

And

Kathryn Renshall, Solicitor

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The proceedings before the Court are parenting proceedings in which the applicant father is a Mr Dewar.  In the course of those proceedings the Court directed that the father attend upon a psychiatrist for the purpose of a psychiatric evaluation.  The father did not attend upon that evaluation in accordance with the appointment that had been made, of which I am told he was informed.

2. I directed when the matter last came before me on 2 March 2011, at which time the father did not appear, that a letter be sent by the Independent Children's Lawyer to the father informing the father that unless he complied with the directions of the Court and attended a psychiatric assessment and filed whatever material he was proposing to file that the Court would assume that he no longer wished to participate in the proceedings and they might proceed in his absence.

3. The matter was again listed for mention on this date and the father has again declined to appear.

4. I am informed by the wife’s solicitor that she has no information as to the father’s failure to appear and I am likewise informed by the representative of the Independent Children's Lawyer that they have no knowledge of the reason of the father’s failure to appear.  They say that they have sent considerable correspondence to the father which remains unreplied to.

5. In these circumstances the Court takes the view that it should proceed in the absence of the father.

6. Orders are sought which are agreed to by both the mother and the Independent Children's Lawyer in terms of a document marked “File Note”, initialled by me, dated today and placed with the papers.

ORDER DELIVERED

1. I find that the orders to be made are consistent with the status quo, save for the removal of the restraint upon the child being taken from the jurisdiction and the orders that any prior order in relation to the child spending time with the father is discharged and that those orders are in the child’s best interest.  I so find based on the fact that serious questions have arisen as to the father’s mental state, and a psychiatric report has been ordered and at this time the Court has no assurance that the concerns that have been expressed in relation to the father’s condition are not soundly based and in the circumstances, until and unless the Court can be so satisfied, it seems appropriate to the Court and in the interest of the child that the order permitting any time to be spent by the child with the father should be discharged.

2. That will not, of course, prejudice the father in the future from making such applications he may be advised and subject to his ability to produce evidence as to his mental health it may be that the concerns that presently exist will disappear.  I find it is practicable and in the child’s best interests to make the orders set forth above.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 24 March 2011.

Associate: 

Date:  12 May 2011