Epworth and Kerr

[2007] FamCA 239

FAMILY COURT OF AUSTRALIA

EPWORTH & KERR [2007] FamCA 239

FAMILY LAW - PARENTING – Final – Mother not taking part in proceedings

Family Law Act, 1975, s.60B(1), s.60CC, s.61D, s.65DAC

Goode v Goode (2006) FamCA 1346

FATHER: Mr Epworth

MOTHER: Ms Kerr

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 7441 of 1996

DATE DELIVERED: 28 February 2007

PLACE DELIVERED: Albury

JUDGMENT OF: Brown J

HEARING DATE: 28 February, 2007

REPRESENTATION

THE FATHER: In Person

Mother’s address unknown

INDEPENDENT CHILDREN’S LAWYER        Ms. Cox, Robb & Associates, Pty. Ltd. 

Orders

1. That the children J born in May, 1994 and T born in September, 1992 live with the father and he have sole responsibility for decisions regarding their day to day care, welfare and development.

1. That the parties retain parental responsibility pursuant to s.61C of the Family Law Act 1975 save that the father be solely responsible for decisions relating to :

   (a)the children’s education;

   (b)the children’s health;

   (c) the children’s religion;  and

   (d)subject to these orders, the children’s residence.

1. That the mother spend such time with the children as is agreed between the parties.

1. That the father give no less than 14 days notice to the mother of any change of the children’s residence (including any intention to move to a different area) by sending advice in writing addressed to the mother :

   (a)care of her mother, at S;  and

   (b)to the last known address he has for the mother at that time.

1. That the independent children’s lawyer serve a sealed copy of these orders on the mother by sending it by ordinary pre-paid post :

   (a)to her former solicitors, with a request that it be retained by them and provided to the mother in the event she contacts that office;  and

   (b)to the mother, care of her mother at S.

1. That all extant applications be otherwise dismissed.

1. That the independent children’s lawyer application for costs be dismissed.

2. That the independent children’s lawyer be discharged forthwith.

1. That these proceedings be removed from the List of matters awaiting finalisation.

1. That pursuant to s.65DA(2) and s.62B 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 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.

2. That the reasons for judgment this day be transcribed and copies be made available to the parties, the mother’s copy to be sent as provided in paragraph (5) hereof. 

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance a solicitor appearing as counsel.

FAMILY COURT OF AUSTRALIA AT ALBURY

FILE NUMBER: MLF 7441 of 1996

MR EPWORTH

Father

And

MS KERR

Mother

Independent children’s lawyer

REASONS FOR JUDGMENT

1. This matter has something of a history in the Court.  The original applications were filed back in October 1995, when the father was living in N.  A number of orders have been made since that time.  This set of proceedings commenced when applications were transferred from the Local Court at W, after the father sought parenting orders in respect of J, born in May 1994 and T, born in September 1992. 

1. The parties have both been represented at times throughout the proceedings.  Each of their solicitors filed a notice of ceasing to act.  In respect of the father, his solicitor filed that notice on 30 January 2007;  in respect of the mother, on 11 December 2006.  In those circumstances, when the matter came before a registrar in January, an independent children's lawyer was appointed.  I am very grateful for the input of Ms Robb and other solicitors from her office.  The independent children's lawyer has subpoenaed a number of police records from New South Wales and Queensland and the DHS files and put herself in a position to make informed decisions about the evidence to be adduced.    

1. Regrettably, the mother has elected to play little part in the proceedings.  When her solicitors filed a notice of ceasing to act on 11 December, the address they gave for her was in B, in Queensland.  The court sent information about the listing of this case to the wife, at that address.  Having heard nothing in response, the court sent a second advice, by express post;  it was subsequently advised by Australia Post that no such person was at that address.  For that reason, the court has been unable to contact the mother.

1. The children have been living with their father for some time.  The evidence supports a finding that the mother's life has been turbulent.  She became unable to cope with the children as a result of problems she experienced in her own life and the evidence supports a finding that the children have been exposed to inappropriate behaviour associated with her drinking, and to violence, including violent acts of her associates.  She lived with the children in a range of accommodation, not all of which was appropriate, and some of the housing arrangements exposed the children to the risk of harm. 

1. When the father swore the affidavit filed on 28 April in the Local Court at W, J had been living with him in W for 16 months.  At that time, T was not living with him but he proposed that she move to live with him and J.  T subsequently did move to live with the father.  At some point, the mother apparently moved back to Queensland. 

1. The provisions in the Family Law Act 1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations the court must consider when determining what it is in a child's best interests. It is the best interests of children which are the paramount matter for the court, and in determining where those best interests lie, the court must consider those primary considerations and the additional considerations set out in s.60CC.

1. There is a presumption that it is in a child's best interests for his or her parents to have equal shared parental responsibility for him or her.  The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent.  The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence and it may be rebutted if the court finds that it would not be in the best interests of the child for it to apply.

1. In the recent decision of Goode v Goode (2006) FamCA 1346, the Full Court held that there is a difference between parental responsibility which exists as the result of s.61C and an order for equal shared parental responsibility, which has the effect set out in s.65DAC. In the former, the parties will exercise the responsibility either independently or jointly. Once the Court has made an order allocating equal shared parental responsibility, major decisions for the long-term care and welfare of children must be made jointly, unless the Court otherwise provides.

1. The independent children's lawyer had proposed that the parties have equal shared parental responsibility for the children.  Given that the exact whereabouts of the mother is unknown, that she has not seen the children for some time, and that she has elected to play no part in these proceedings, it seems to me impracticable to make an order that would require genuine consultation and agreement on significant issues including the children’s education, health, religious upbringing and any potential changes in their living arrangements. 

1. In my view, the only practicable solution in this case is to give the father responsibility for those matters, with a proviso that were he to move from the current area, indeed from his current house, he advise the mother of that fact by sending notification to her mother's address in W, assuming he then has no current address for the mother.  I am satisfied the father has done what he could to maintain the relationship between the children and their mother.  They have seen her in B, and at other times.  The father today has expressed concern about sending the children to Queensland again;  having regard to the lack of evidence about the mother's present living arrangements, that may be a legitimate stance.

1. Given his commitment to the children, as evidenced by his care of them in recent times, I am satisfied the appropriate order to make is that the mother spend time with the children as agreed between the parties.  I am confident the father will allow them to spend such time with her as is consistent with their best interests, and will ensure they are not put at risk (emotional or physical) when in her care. 

1. Considering the evidence of the father and the submissions of the independent children's lawyer (who I am satisfied has made all appropriate inquiries) I am satisfied that the best interests of the children will be fostered by orders providing for the children to live with their father and to spend time with their mother, as agreed.

1. There is an application for costs by the independent children’s lawyer.  The Court has been assisted significantly by her appointment.  Indeed, if that had not been done in January, it is unlikely the matter could have been resolved today.  I do not propose to order that either of the parents make a contribution to the independent children’s lawyer’s costs.

I certify that the preceding
13 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the          day of           2007.

…………………………………………
Associate

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as EPWORTH & KERR