Ellgar and Okeil (No 3)

[2009] FamCA 837

FAMILY COURT OF AUSTRALIA

ELLGAR & OKEIL (NO. 3) [2009] FamCA 837

FAMILY LAW – PRACTICE AND PROCEDURE – mother has history of non attendance at court and assessment dates and non compliance with orders – matter to proceed undefended

FAMILY LAW – CHILDREN – with whom the children should live – two children living with the father and one with the mother – father seeking sole parental responsibility for the children living with him and seeks no orders in relation to child living with the mother – mother has not displayed the appropriate level of responsibility in parenting – not in the children’s best interests that the mother have parental responsibility – children to live with the father and spend time with the mother as may be agreed – interim orders relating to the child living with mother discharged

Family Law Act 1975 (Cth)

APPLICANT: Mr Ellgar

RESPONDENT: Ms Okeil

INDEPENDENT CHILDREN’S LAWYER: Karen Tydeman

FILE NUMBER: ADF 1399 of 2006

DATE DELIVERED: 20 May 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 20 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms A Du Barry

SOLICITOR FOR THE APPLICANT: Bartel & Hall

SOLICITOR FOR THE RESPONDENT: No appearance

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr K Tredrea

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Legal Services Commission

Orders

1. That leave be granted nunc pro tunc to the father to file a further Amended Application for Final Orders filed on 29 April 2009.

2. That the applicant father have sole parental responsibility for the infant children T born … July 1998, C born … November 2001 and that the said infant children live with the applicant father.

3. That the said children spend time with the respondent mother at such times and upon such conditions as may be agreed between the parties.

4. That handovers for the purpose of the said children spending time with the respondent mother take place at the Town Hall or in the town of P between the applicant father and the maternal grandfather.

5. That all previous parenting orders made in this case in relation to the said children and the child R born … February 1997 be discharged.

6. That the order appointing the Independent Children’s Lawyer be discharged as from the date of the delivery of further reasons for judgment.

7. That all applications and responses be dismissed and removed from the active pending cases list.

8. That the application for costs made by the applicant father on 1 May 2009 be dismissed.

9. That pursuant to Section 62B and Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1399 of 2006

MR ELLGAR

Applicant

And

MS OKEIL

Respondent

EX TEMPORE REASONS

1. This matter was listed today as an undefended hearing on the Further Amended Application for final orders filed by the father on 29 April 2009.  The mother has not attended today, and I just need to dwell on the recent history as to why I am prepared to proceed and propose to proceed on an undefended basis today.

2. This matter commenced before me with the first day of trial on 20 October 2008.  The mother did not physically attend at the hearing, but she attended part of the hearing by telephone.  The mother was unrepresented, the father was represented, and the independent children's lawyer was represented by counsel.  Helpfully, Dr C, a psychologist who has been the single expert instructed in this case, and who has prepared a number of reports, was present on that day.

3. The mother gave as an excuse as to why she was not physically in court that her motor vehicle had mechanical trouble.  Her absence resulted in the hearing not being able to proceed as it would normally have proceeded if she had been physically present.  I made a number of orders though, particularly that Dr C prepare an updated family assessment report, that the parties file amended applications and responses setting out the final orders that they now sought, and for the filing of affidavits of evidence‑in‑chief of each party.  I adjourned the matter for a continuation hearing to 23 December 2008.

4. Even at that time there were a number of concerning issues present in relation to the mother and her parenting of the children.  That was apparent at least from the reports that had been provided prior to that date by Dr C.

5. The father complied with the orders that I made on 20 October 2008 but the mother did not.  Dr C provided an updated family assessment, and which is annexed to the affidavit of the independent children's lawyer filed on 19 December 2008.  Importantly for this part of my judgment, as Dr C records in that report, arrangements were made for the parties and the children to attend for the purposes of the preparation of the report, however the mother did not attend.  Further, despite persistent efforts by Dr C and his office and the independent children's lawyer, the mother failed to make any contact with Dr C’s office to arrange for completion of the assessment.

6. Thus the assessment that was provided had no input from the mother, but was prepared on the basis of input from the father and the children, the subject of these proceedings.  Dr C recommended that the three children, R, T and C, continue to live with the father.  They had been living with the father prior to that point in time and they continue to do so.  His second recommendation was that the court consider viable alternatives for the children to maintain a regular, reliable and safe connection with the mother, including exploration of the appropriateness of supervision via the maternal grandparents.  That arose out of allegations and issues as they pertain to the mother in terms of family violence and third parties with whom she had been, and presumably was continuing to associate.

7. When the matter was called on on 23 December the mother did not attend.  To repeat, she also did not comply with my order, she did not file any affidavit, and she failed to attend for the purposes of the family assessment being undertaken by Dr C.  In the end result I made orders dismissing the mother's Response, removing that from the active pending cases list and providing for the father's further amended application, which had been filed on 17 December 2008, to be listed for an undefended hearing on 13 March 2009. 

8. On 12 March 2009, the mother filed an application in which she sought that the order that the matter proceed on an undefended basis be set aside, that the trial in these proceedings be adjourned and a new trial date be set, and the mother have leave to file and serve a trial affidavit by 31 March 2009.  That was an application prepared by a solicitor acting for the mother, namely Ms Milen.

9. On 13 March 2009 that application was pursued and I determined to give the mother another opportunity to take part in these proceedings.  I ordered that the mother file and serve her response and her affidavit of evidence‑in‑chief and the affidavit of evidence‑in‑chief of her father, whom she wanted to call as a witness.  I also made orders that the father update his documents by filing a further affidavit of evidence‑in‑chief responding to the affidavits of the mother once filed.  I also ordered that Dr C prepare an updated family assessment report to be filed on 24 April 2009.  The purpose of the latter order was that on the basis of the mother wanting to be involved in the proceedings, there was a need for her to see Dr C or be interviewed by him and enable him to complete the assessment process with input from both parties.  I adjourned the matter to 1 May 2009. 

10. One of the issues that had become relevant in March 2009 was an allegation that the father had assaulted the child R, and as a result R had left his care and was then residing with the mother.  That needed to be investigated, and I gave leave to the mother to issue subpoenas to the South Australian Police and to Families SA about that, and also, although I did not make a specific order about this, this was obviously to be the subject of consideration by Dr C in his further assessment report. 

11. The subpoenas were not then issued by the mother, but the independent children's lawyer attended to that, presumably because the mother - as I will come to in a moment - has again dropped out of the picture and failed to take any further part in these proceedings. 

12. A notice of ceasing to act was filed by the mother's solicitor on 21 April 2009.  The mother did not file any documents and did not comply with the orders that I made on 13 March 2009.  The father did.  He filed his updated trial affidavit and he also filed a further amended application.  The matter then came before me on 1 May 2009 when the mother failed to appear. 

13. An updated report of Dr C’s dated 30 April 2009 was tendered by the independent children's lawyer.  Importantly, Dr C recorded that the mother did not attend the appointments that were scheduled.  That meant that Dr C couldn't see R either because of course she was then living with the mother.  Dr C was only able to further interview the father and the younger children. 

14. Dr C naturally found himself in a difficult position to provide recommendations in this case, given the mother's failure to attend appointments, and also her failure to allow Dr C to interview R or the child M, who is not a child the subject of these proceedings, but is a child of the mother.  No-one is sure precisely where she lives now, whether it is with the mother or with someone else.

15. In the circumstances I adjourned the cast to today for an undefended hearing.  I made orders for the mother to be advised of the orders made that day, and that has been done in correspondence from both the court and from the independent children's lawyer.  From the court's point of view that letter has not been returned and therefore I proceed on the basis that the mother has received it.  However she has not attended, and she has not filed any document. 

16. With that history, I have no qualms in proceeding on an undefended basis today.  I was concerned though about the situation of R.  I understand that R is still living with her mother despite the orders in place that R reside with the father.  Those orders were made on 18 April 2008.  I am also told that the younger children are not seeing the mother.  That is concerning.  Also there are serious issues between the child R and the two younger children.  Apparently they attend the same school.  Those issues are set out in detail in the report of Dr C of 30 April 2009.

17. The situation presented to me is not a happy one.  I expressed concern about it on 1 May 2009, and I do so again.  There is in the background an unresolved issue between the father and R involving an allegation of assault.  That is explored somewhat in the report of Dr C.  I am told though that nothing has come of that, either in terms of any police charges or any involvement of Families SA, but I am still concerned about it.  It is unresolved in that the father is not seeing R, and that is an unsatisfactory state of affairs.  However, I can do no more than deal with the applications that are before me.  The mother has chosen not to be involved, and I do not propose to delay the matter any further. 

18. Thus, proceeding on an undefended basis, the application that is before me is the application of the father's filed on 29 April 2009.  In that application the orders that he seeks are firstly that leave be given to file the application if I have not already given leave, and I have not in fact done that.  I will give that leave nunc pro tunc as part of the orders that I make today.  Secondly he seeks an order that he have sole parental responsibility for the children T and C.  Pausing there, I quizzed counsel about that and both counsel, including the counsel for the independent children's lawyer, have put to me that in this case the presumption in s 61DA of the Act does not apply because of issues of family violence, and Ms Du Barry has referred me to relevant paragraphs of the father's affidavit filed on 17 December 2008. 

19. As this matter has progressed I have read the material, importantly including the reports of Dr C.  I can say that I am satisfied, with the support of the independent children's lawyer, that not only does the presumption not apply, but in considering what order I should make as to parental responsibility, it is in the best interests of the children, T and C, that their father have sole parental responsibility.  The mother simply has not displayed the appropriate level of responsibility in her parenting of these two children, which would lead me to seriously consider the possibility of equal shared parental responsibility.  I need to consider it, but in considering it on the evidence that is before me, it is not appropriate, nor in the best interests of the children, that the mother have parental responsibility.  It should reside with the father.  He is the one who has taken on the responsibility of caring for these children, and it is a difficult task in the circumstances, and one which he deserves great credit for.  He needs to have the security of that order as this matter goes forward because I suspect that this won't be the last occasion there will be any difficulties in this case.  These orders will not automatically and magically resolve all the issues in this case.  There are clearly going to be ongoing issues, but the children need the security, and the father does as well, of a sole parental responsibility order. 

20. The father seeks an order that the children, T and C, reside with him.  In that regard I propose to deliver further reasons for judgment beyond what I can do at the moment.  As I have indicated, I have not been provided with an outline of case document by the legal representatives for the father.  That has severely hampered me in being able to complete my reasons for judgment today.  Ms Du Barry though has undertaken to provide my chambers with an outline in the immediate future, which will allow me then to complete the reasons for judgment.  I still propose though to make the final orders today.

21. Thus I will make an order that the children, T and C, live with the father, for reasons which I will detail in my further reasons for judgment.

22. The next order that the father seeks is that the mother see and spend time with the children at such times and periods as it may be agreed.  Currently there are specific orders in place for the children to spend time with the mother.  Clearly though in the circumstances that has become unworkable.  The mother is not seeing the two children, T and C, and there is the problem with R which I have adverted to.  However, I am satisfied that that order should still be made.  It allows for the children to spend time with their mother, but subject to agreement between the parties. 

23. I refer generally to Dr C’s reports wherein he has consistently said that there needs to be a relationship between children and mother, and I support that, obviously, but if the mother does not want to be involved in the proceedings there is not much I can do about that.  I am pleased that the father is seeking such an order, it leaves it open for the children to spend time with their mother in the future, and I obviously encourage that to occur.  Bearing in mind that I am only dealing with T and C at this stage, and I will come to R in a moment, I propose to make the order.  I might just re-word it though such that it only refers to "spend time with".  The words "see" and "spend time" do not add anything to it and they are not consistent with the legislation.

24. Paragraphs 5 and 7of the application are not being pursued.  In paragraph 6 an order is sought that the handovers take place at the P Town Hall or P and be between the applicant father and the maternal grandmother.  There are clear reasons justifying such an order set out in the affidavits that are relied upon by the father.  It is an order supported by the independent children's lawyer and thus I will make it.

25. That completes the orders sought.

26. The father does not seek any orders in relation to R because she is no longer living with him.  The issue that I have addressed though is what should happen to the interim orders that are still in place.  My view is that they should be discharged in the circumstances, and that is now the view of the father, and also the independent children's lawyer. 

I certify that the preceding 26 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 20 May 2009.

Associate