Every and Mcnaught

[2013] FamCA 1090

FAMILY COURT OF AUSTRALIA

EVERY & MCNAUGHT [2013] FamCA 1090

FAMILY LAW – PARENTING – Mother’s application withdrawn – non-attendance by mother and no instruction to counsel– orders made in the terms of the minutes prepared by the father’s solicitors.

APPLICANT: Mr Every

RESPONDENT: Ms McNaught

FILE NUMBER: MLC 4057 of 2010

DATE DELIVERED: 13 December 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 13 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Williams

SOLICITOR FOR THE APPLICANT: McDonald Slater & Lay

COUNSEL FOR THE RESPONDENT: Ms L.C. Steiner

SOLICITOR FOR THE RESPONDENT: Lucy C Steiner

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Devine

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Lampe Family Lawyers

Orders

1. That until further order the father spend time with the children from after school on 13 December 2013 in the case of B, and from 4.00pm at Suburb D Police Station in the case of C, until the commencement of school Monday 16 December 2013.

2. That the father spend time with the children from the conclusion of school on 20 December 2013 for a period of four weeks concluding at 5.00pm on 17 January 2014, unless otherwise ordered.

3. That the mother:

   (a)Deliver the children to school on 20 December 2013;

   (b)Be restrained from removing the children from their school on 13 December and 20 December 2013;

   (c)Be restrained from attending their school on 13 and 20 December 2013 save for delivery of the children to school; and

   (d)Be restrained from using any agent or any other family member to act contrary to these orders.

4. That the children be able to telephone their mother on two occasions per week at times chosen by the children.

5. That the mother provide to the father her telephone contact number to facilitate contact.

6. That upon the children coming into the father’s care, the father is to ensure C born … 2003 attends upon a general practitioner to renew C’s script for his ADHD medication, and ensure C takes the medication at all times recommended whilst in the father’s care (including for all school days), and the father provide the medication to C’s school.

7. That the mother file and serve her trial affidavit on or before 18 December 2013.

8. That in the event the mother fails to comply with Order 1 the father be at liberty to issue an urgent recovery order on Monday 16 December 2013.

9. That the mother personally attend the trial of this proceeding on Monday 13 January 2014.

10. That until further order the mother and the father each be restrained from removing the children from the State of Victoria.

11. That in the event that the mother fails to attend on the trial or fails to file her responding affidavit the father be entitled to make an application that the hearing proceed on an undefended basis.

12. That the Independent Children’s Lawyer serve a copy of these orders on the children’s school forthwith.

13. That pursuant to s 65DA(2) and s 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.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4057 of 2010

Mr Every

Applicant

And

Ms Mcnaught

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. Before me today I have competing applications in relation to the interim care arrangements, specifically holiday arrangements, for the two children:  B born in 2002, who is aged 11 years, and C, born in 2003, who is aged 10 years.

3. The matter comes before me on the basis of an application in a case filed on behalf of the mother dated 11 September 2013.  In that application, the mother sought orders that the children live with her and that they spend time with their father on a supervised basis at E Care in Suburb D.  That application was originally listed before me on 13 November 2013 and was adjourned by me for hearing before me this day.

4. The father has filed a response to that initiating application.  His response is an amended response to an application in a case filed 8 November 2013.  In that response, the father seeks orders for extended time with the children on a weekly basis and, further, that the children spend time with their parents on, effectively, a week-about basis.  The father’s application is supported by his affidavit filed 8 November 2013. 

5. When the matter commenced before me today, the mother’s solicitor indicated that the mother did not seek to proceed with her application in a case.  Indeed, she sought to withdraw that application.  The mother has not appeared at Court this day.  This is the second occasion this matter has been listed before me and it is the second occasion on which the mother has not appeared. 

6. I have invited Ms Steiner at times during this morning to communicate with her client to obtain instructions in relation to various matters.  I have sought from Ms Steiner an explanation as to the reason for the mother’s non-attendance at Court this day.  No explanation has been forthcoming.  Ms Steiner, to her credit, has been frank and open with the Court that she simply does not have instructions in relation to the matter.

7. At the commencement of the hearing, I was provided with a minute of order sought on behalf of the father.  The father’s position has shifted from that originally sought by him in his response to application in a case.  The father’s proposed orders relate to the time to be spent by him with the children for the balance of this school year and, also, address the position as to what should occur during the coming long summer vacation period.

8. The father specifically seeks orders that he spend time with the children from after school on Friday to the commencement of school on Monday for the weekends commencing 13 December and 20 December.  Further, he seeks that he spend time with the children for a period of four weeks during the long summer holiday period commencing on 20 December 2013. 

9. Further, he seeks orders specifically addressing the implementation of that time with the children.  He seeks an order that the mother be required to deliver the children at school at the commencement of his periods of time.  He seeks further orders restraining the mother from removing the children from their school on those days and restraining her attendance at the school other than for the purposes of delivering the children to the school.  He also seeks an order that the mother’s servants or agents be restrained from undertaking such conduct.

10. There are also orders sought by the father which provide for the mother to communicate with the children during the school holiday period.  There are also directions and orders sought in relation to the preparation of this matter for final hearing. 

11. The matter is listed to commence on 13 January 2014.  Notwithstanding previous orders made by me for the preparation of the matter for final hearing, the mother is yet to file her trial affidavit. 

12. By orders of 13 November 2013, I extended time for the mother to comply with orders for the filing of her trial affidavit.  That document was to have been filed and served by 11 December 2013.  Again, to her credit, the mother’s solicitor has been very open with the Court as to what has transpired with respect to the preparation of that document.  She indicates that whilst there is a draft document prepared, the mother has not attended her offices to finalise and swear that document.

13. The father seeks the opportunity to make application for the matter to proceed on an undefended basis in the event that the mother fails to appear at the final hearing.  He seeks an order that she be ordered to personally attend the trial of this matter.  Finally, he also seeks orders restraining each of the parties from removing the children from the State of Victoria.

14. I sought an indication from the mother’s solicitor as to what if any of the father’s proposed orders were agreed.  Whilst the mother’s solicitor indicated that she did not have instructions to consent to many of the orders sought, she did confirm that she did not oppose those orders.  Of the orders that she does not oppose, I confirm that I will make orders in the terms of the minutes prepared by the father’s solicitors.  Therefore, there will be orders made in the terms of order 1, order 3, order 4, order 6.  It was conceded by the mother’s solicitor that the trial affidavit should be filed on or before 18 December 2013. 

15. On the basis of that submission, I will make an order in the terms of paragraph 6 of the father’s proposed orders.  I will also make an order in the terms of paragraph 8. 

ORDERS DELIVERED

1. In issue is the question of what period of time the children should spend with their father during the holiday period.  Whether or not the mother should provide her telephone number to the father to facilitate the children’s telephone communication with the mother during the holiday period.  Whether or not there should be liberty to issue an urgent recovery order and whether or not the father should be entitled to make an application to proceed on an undefended basis in the event of the mother’s noncompliance with orders that she attend the hearing.

2. Counsel appearing on behalf of the Independent Children's Lawyer indicated her client’s consent and support of the orders sought on behalf of the father.  In addition to those orders, she seeks a further order that in the event and upon the children coming into the father’s care pursuant to any orders I make, that the father be required to ensure that the child, C, attends upon a general practitioner for the renewal of his medication for treatment of his ADHD and, further, that the father will abide by any recommendations of the general practitioner and provide all necessary medications for C to C’s school.  That is an issue which I am also required to make a determination about today. 

3. The history of this matter is long.  I think proceedings have been on foot since 2008, possibly earlier.  It is evident from the material before the Court that the children have had significant difficulties in having a meaningful relationship with both of their parents.  There is a raft of evidence as to the reasons why that has occurred.  That evidence has not been tested and I am not in a position today to make findings of fact in relation to many of those matters.

4. The children have had a significant involvement with the Department of Human Services.  It is evident from the most recently prepared report from the Department that there are ongoing issues with respect to the care of the children when in the mother’s home.  The mother has a long history of cannabis abuse.  That is conceded by her in affidavit material.  It is identified by the Department of Human Services as being a significant issue in this case because it affects, potentially, the mother’s capacity to appropriately care for these children.

5. There are significant issues in terms of the care provided for the children by the mother in her home.  The report of the Department of Human Services dated 10 December 2013 (“the DHS Report”) confirms that those issues are ongoing.  There are issues with housing.  It is suggested in that report that there are problems and a notice to vacate has been served upon the mother with respect to her current housing.  There are significant issues with respect to the children’s attendance at school when in the mother’s care.

6. It would appear from the DHS Report that there is an infestation of cockroaches in the home, which is suggestive of significant problems in management of that home, the hygiene in the home and the like.  There are significant issues with respect to the children’s attendance at school when in the mother’s care.  Those issues are greatly concerning to the court.  Counsel for the Independent Children's Lawyer has provided submissions today, very helpfully which provide an overview as to the children’s attendance at school since the parties were last before the court on 13 November, 2013.

7. On 13 November 2013, I made orders specifically requiring the mother to ensure the children’s attendance at school and further, I made an order that if the children were not to attend school that the mother was to provide a medical certificate explaining the children’s non-attendance.  That medical certificate was to be provided by the children’s treating medical practitioners to the Independent Children's Lawyer.  Since 15 August 2013, the child, B, has been absent from school for 31 days and has been late for a further 19 days.  It would appear that he has had more than 10 days, upon which he has either been late or not attended school without explanation since I made orders on 13 November 2013.

8. The history in respect of C’s school attendance is similarly concerning.  There are at least 11 days identified since 13 November 2013, when he has either been late for school or has not attended school.  And again, there has been no explanation provided by the mother as to the reason for his non-attendance.  There has been no medical certificate provided by the mother in respect of either B or C, which would provide some understanding or explanation as to their non-attendance at school. 

9. Further, in addition to those issues, there is the question of the children not being made available to spend time with the father in breach of existing court orders.  Pursuant to the current orders, the father is to spend time with the children on a weekly basis, on each weekend from after school on Friday to the commencement of school on Monday.  That time has not been occurring and indeed, it is some months now since the father last spent time with the children, the last successful occasion being 13 September 2013. 

10. Counsel for the father submits that if the time is to be successful, that is the holiday time is to be successful, it needs to be for an extended period without the interruption of time with the mother, which would, therefore, provide her with an opportunity to potentially undermine the children’s time with their father.  I accept that submission, having regard both to the report of the Department of Human Services and also having regard to the observations made in the family report dated 29 October 2013.  Again, I repeat that that evidence is untested, but there are significant concerning features in each of those reports that supports the submissions made by Counsel for the father.

11. It is submitted on behalf of the mother that the mother is content for the children to spend time with the father for a two week period.  That submission does not take into account the time that the children should have spent with the father, but have not spent during the school term. 

12. I am satisfied that it is appropriate and in the children’s best interest to make the orders sought by the father having regard to the considerations set out at s 60CC of the Act (including the primary considerations that the children have the opportunity of a meaningful relationship and the benefit of a meaningful relationship with both their parents), and also having regard to the additional considerations as set out in section 60CC (including the extent to which that each of the child’s parents has taken or failed to take to participate in the children’s lives, the extent to which each of the children’s parents has fulfilled or failed to fulfil obligations to maintain the children, the capacity of the parents to provide for the needs of the children, the attitude to the children and to the responsibilities of parenthood).  I am satisfied that all of those factors are relevant and important and support the need for these children to spend an extended period of time with the father.  Accordingly, I propose to make orders in the terms of paragraphs 1, 2, 3, 4 and 5 of the father’s proposed orders.

13. As to the question of whether or not the mother should provide a telephone contact number to facilitate time, I consider that it is appropriate that she provide that telephone number to the father.  He does have a need to have a direct means of being able to contact the mother, both for the purposes of facilitating telephone communication between the children and the mother, but also as a means of being able to contact her in the event of an emergency or some other event, which would necessitate him being able to contact her directly.

14. I will also make orders in the terms of paragraphs 6.  As to liberty to apply to issue an urgent recovery order, I do not consider that it is appropriate for the father to have to wait until 23 December 2013 to file such application.  If time is not facilitated this weekend in accordance with these orders the matter should return to court next week.  I do not want this matter to get lost in the, no doubt, multitude of cases that are likely to find their way before the Court in the two days preceding Christmas.  It is imperative that these children have an opportunity to spend time with both of their parents.  To date, they have not had the opportunity to spend that time, which is otherwise provided in court orders. 

15. Accordingly, what I will do in relation to the father’s proposed order 7, will be that in the event the mother fails to comply with order 2, the father be at liberty to issue an urgent recovery order on Monday, 16 December 2013.  I have amended paragraph 8, so that it will be that the mother personally attends the trial of this proceeding on 13 January 2014.  Paragraph 9 I have amended to reflect the common ground between the parties in terms of the injunction, so that it will be that until further order that mother and the father each be restrained from removing the children from the State of Victoria until further order.   I will also make an order in the terms of paragraph 10 of the proposed order, which will be in the event that the mother fails to attend on the trial or fails to file her responding affidavit, the father be entitled to make an application that the hearing proceed on an undefended basis.

16. The mother needs to understand that it is imperative for the benefit of these children that the final determination of all issues be made in January 2014.  It is disturbing that these children have been deprived of the opportunity of enjoying their school year in 2013.  Their attendance at school is a very significant and concerning feature of this case in conjunction with the importance of their relationship – supporting their relationship with the father.  Both of those issues need to be addressed before another school year commences.  I will also make an order in the terms of paragraph 3 of the minute of order prepared by the Independent Children's Lawyer.   It is important that C receives appropriate medical treatment for his condition of ADHD, that he has the appropriate medication and that it is administered not only in the father’s home, but if required at school and also in the mother’s home when C is in the mother’s care.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 13 December 2013.

Associate:

Date:  13 December 2013