Docklands and Marshman
[2010] FamCA 611
•6 July 2010
FAMILY COURT OF AUSTRALIA
| DOCKLANDS & MARSHMAN | [2010] FamCA 611 |
| FAMILY LAW – CHILDREN – Best interests of the child |
| Family Law Act 1975 (Cth): s 60CC , s 61DA(2) |
| APPLICANT: | Mr Docklands |
| RESPONDENT: | Ms Marshman |
| INDEPENDENT CHILDREN’S LAWYER: | Mrs G. Yeend, Evans Yeend Family Lawyers |
| FILE NUMBER: | CAC | 398 | of | 2010 |
| DATE DELIVERED: | 6 July 2010 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Faulks DCJ |
| HEARING DATE: | 6 July 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | No appearance |
| SOLICITOR FOR THE APPLICANT: | No appearance |
| COUNSEL FOR THE RESPONDENT: | Ms L. Keogh |
| SOLICITOR FOR THE RESPONDENT: | KJB Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Mrs A. Evans |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Evans Yeend Family Lawyers |
Orders
IT IS ORDERED:
The initiating application filed by the father in the Family Law Courts on 10 July 2009 is dismissed.
All existing orders about the time that K, born … August 2002, spends with his father are discharged.
By way of more abundant caution only I affirm and confirm Orders 1 and 2 made by me on 18 March 2009, namely that Ms Marshman, K’s mother, have sole parental responsibility for K, born … August 2002, and further that K will live with his mother.
K will spend no time with his father, nor communicate with his father, nor will his father communicate with him and any orders to that effect previously made by Federal Magistrate Neville are discharged.
All orders relating to arrangements that the parties may be required to make in relation to their attending upon D Contact Centre for the purpose of arranging some form of time between K and his father are discharged. Otherwise the application of the father relating to K is removed from the pending cases list and is finalised.
The matter relating to the division of property of the parties is to be the subject of a Conciliation Conference on 7 September 2010 and will proceed on that day in accordance with the directions previously given.
The appointment of Mrs Yeend as the Independent Children’s Lawyer is discharged.
IT IS NOTED that publication of this judgment under the pseudonym Docklands & Marshman is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAC 398 of 2009
| MR DOCKLANDS |
Applicant
And
| MS MARSHMAN |
Respondent
REASONS FOR JUDGMENT
By way of initiating application filed by Mr Docklands (‘the father’) on 10 July 2009, the father sought the following orders on a final orders basis:[1]
a)Have contact with my son [K] by Phone, letters & internet;
b)Have my son with me for half the time during all school breaks;
c)Attend his school & receive correspondence ie reports, concerts & parent/teacher nights.
d)Allow access & contact with [Docklands] Family Grandparents;
e)Every 2nd year have [K] spend Christmas/Boxing Day, Easter & [K’s] Birthday;
f)Be available to attend other important [Docklands] family occasions eg. Funerals, Births, 75th/80th Birthday Occasions, Also marriages.
[1] Initiating application, filed 10 July 2009, Interim & Final Orders Sought (reproduced without correction).
I propose to dismiss that application.
The orders that I made on 18 March 2009 when the matter was last before me meant that the mother would have sole parental responsibility for K and that K would live with her. There was no order made at that time in relation to the time that K would spend with his father.
The father’s application does not seek to change the matters that are dealt with by my substantive and final orders made by me on 18 March 2009. Hence, there is no reason for me to consider or to vary the orders that I made previously, but I will re‑issue them for the sake of certainty.
So far as the time that K will spend with his father is concerned, given that the relevant information that might have been available to assist me in concluding that there would be an advantage to K in spending time with his father has been rendered ineffective by the father’s failure to attend on Dr S. I note that this was an intentional act on his part as recorded by Neville FM in a notation to his orders on 27 May 2010: “In relation to the proceedings involving [K], [the father] has confirmed his refusal, in open Court, to attend upon the Court appointed expert, Dr [S]”.
I take account of the matters set out under s 60CC of the Family Law Act1975 (Cth) which involve a consideration of what matters might be in K’s best interests. In this regard I note the following matters as being relevant for the purposes of my consideration.
The first primary consideration is whether there is, in effect, a benefit to K in having a meaningful relationship with both of his parents. It does not appear in the circumstances of this matter, particularly the father’s deliberate failure to attend for an assessment which may enable that relationship to have been more accurately commented upon by the relevant expert, that there is any benefit to him in having a relationship with his father.
There is a question based on the information that has been filed in this Court about whether, if I were to make an order about the time that K would spend with his father, he would be properly protected from physical or psychological harm. In those circumstances, it would not be appropriate to afford that primary consideration any weight except in relation to making an order that prevented his spending time with his father.
I am unaware of, except through the report from Dr S, K’s views about the time he might spend with his father. In any event, it seems to me that in this case there is nothing contained in his views which would preclude my making the orders that I propose to make. In fact, it would favour the orders I am proposing to make.
K’s relationship with his father is for all practical purposes non‑existent at the present point. Although his father sought orders about the time that K might spend with grandparents and other relatives, no details are provided in a way that would enable me to conclude that this would be for his benefit. This is particularly so as such time would almost inevitably and invariably mean that it will also be in the presence of his father who is apparently unwilling to proceed with or take part in these proceedings.
It is difficult for me to form a view about the father’s willingness and ability to facilitate and encourage a close and continuing relationship between K and the mother. The only evidence I have would suggest to the contrary.
So far as the mother is concerned, it does not appear that she has the willingness to facilitate the close relationship between K and his father. That in the circumstances of this matter is not a disqualifying factor. The primary and additional considerations are not some form of checklist that needs to be ticked in each column to achieve a result. This additional consideration is a merely a factor properly to be considered and taken into account.
I do not believe that the practical difficulties associated with K spending time with his father can be overcome except in circumstances where that time is supervised by a professional person. There is no indication that is capable of being carried out in the circumstances of this matter.
I have no reliable information about the capacity of the father to provide for the needs of K, particularly his emotional and intellectual needs. I am satisfied, although to some extent my satisfaction in this regard is unnecessary because of the orders that have already been made on a permanent basis for sole parental responsibility and for K to primarily live with his mother, that his mother is a person who can provide the appropriate emotional and intellectual needs. I am not satisfied that the father has demonstrated in any way an attitude towards K and to the responsibilities of parenthood that would enable K’s best interests to be served by his spending time with his father.
There are issues about family violence which it is unnecessary for me to make any particular order about, but which I am satisfied (a) would satisfactorily rebut any presumption of equal shared parental responsibility,[2] and (b) would militate against there being an order in favour of K spending time with his father, certainly on an unsupervised basis and probably on a supervised basis at this point.
[2] Family Law Act 1975 (Cth) s 61DA(2).
For these reasons, therefore, it seems appropriate to me to dismiss the father’s application and to make orders finalising the children’s part of this matter.
I am further satisfied and I accept the information that has been given to me by Ms Keogh that notwithstanding that the order for transfer to this Court may not have been made in the presence of the father, I am satisfied that a notice of the hearing today was sent to him at his notified address for service which appears to have been the address at which he was living when he filed the Initiating Application on 10 July 2009. It is the father’s responsibility to change that address for service if, in fact, there has been a change.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.
Senior Legal Associate:
Date: 19 July 2010
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