FAIRLIE & BAILER

[2014] FamCA 1232

FAMILY COURT OF AUSTRALIA

FAIRLIE & BAILER [2014] FamCA 1232

FAMILY LAW – PARENTING

APPLICANT: Ms Fairlie

RESPONDENT: Mr Bailer

FILE NUMBER: CAC 1055 of 2013

DATE DELIVERED: 21 July 2014

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 21 July 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Milson-Mahy, Pappas J Attorney

SOLICITOR FOR THE RESPONDENT: No appearance by or on behalf of Mr Bailer

Orders

What I make are as follows:

1. The mother of B, born … 2005, being Ms Fairlie, will have sole parental responsibility for the child.

2. B will spend time with her father for one half of each of the New South Wales school holidays.  Unless the parties otherwise agree, the time that the child spends with her father will commence on the first Saturday immediately after the commencement of the school holidays and terminate on either the middle day if the holidays are an even number of days counting the first day after the last day of school as the first day of school holidays and the day before the child returns to school as the last day of the school holidays or if the number of days is an even number on the first day after the middle day of the school holidays.

   (a)The time that the child spends with her father during term school holidays will only occur if the father has communicated to the mother in writing (including by text or e-mail) the details of the arrangements for her travel both to and from him during the school holidays.  This must be communicated not less than fourteen days before the time on which she is due to leave C Town to travel to him.  If the father should fail to make such communication the time with her father will not occur. 

   (b)During the longer holidays at the end of the year the child will spend the first three weeks of January in each year with her father (unless the parties otherwise agree).  Again, this is subject to a condition that the father provides details of the child’s travel not later than fourteen days before the end of each calendar year and, again, if he should fail to do so then the period that the child would spend with him shall not occur. 

3. B may telephone her father at any reasonable time and the child’s father may telephone her on each Saturday and Monday at 7pm.  Notwithstanding this order the parties may agree to an alternative arrangement if the father cannot comply with his times to call the child as set out above.  However, if the father should engage in either abusive or critical or unpleasant conversation with the mother in the course of his making such arrangements then the alternative arrangements will not proceed. 

4. B’s mother will communicate with the father about any medical conditions or illnesses which the child may suffer from and will authorise any treating medical practitioner to provide to the father, at his own cost, information about the child’s condition and or treatment. 

5. The mother will authorise the school that the child attends to provide at the father’s expense reports and notices to him issuing from the school about the child. 

6. B’s father be and is hereby restrained from driving a motor vehicle or any other form of vehicle with the child when he is under the influence of either illicit drugs or alcohol. 

7. During any time that the child’s father is with her he shall not be under the influence of illicit drugs or consume alcohol to an extent which would place him over the prescribed limit in respect of driving a motor vehicle.

8. The father be and is hereby restrained from driving the child while he is not licensed to drive.

9. The father be and is hereby restrained from bathing the child (including being either in the same bath or in the same shower as the child when she is either having a bath or shower).

10. The father be and is hereby restrained from sleeping in the same bed as the child or permitting her to sleep in the same bed with him. 

11. All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.

12. Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it.  Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

13. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled Parenting orders - obligations, consequences and who can help, a copy of which is annexed to these orders

14. Otherwise the matter is removed from the pending cases list and all other previous orders relating to the child are discharged including the order made by me on 30 April 2014 relating to the removal of the child from Australia and the placing of her name on the Airport Watch List.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bailer & Fairlie 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 CANBERRA

FILE NUMBER: CAC 1055 of 2013

Ms Fairlie

Applicant

And

Mr Bailer

Respondent

REASONS FOR JUDGMENT

1. The matter was set down for hearing by my order in the presence of Mr Bailer on 30 April 2014 as being due to be heard on this day.  In addition, I am satisfied from the court file that he received the notice on 1 May 2014 by email informing him that the matter was set down for hearing on this day.  He was also advised on that day or given a copy of the orders I had made on 30 April 2014, and he received on 30 June 2014, or it was sent to him on 30 June 2014, a fee reminder notice about the setting down of the matter for hearing.

2. On this day his name was called outside the Court and there was no response and there is no explanation or any other notification of which I am aware that he was unable or in some way prevented from attending Court on this day.  Accordingly, in my opinion, it was appropriate the matter should proceed as an undefended hearing and the material that has been put before me by the mother remains, in this case, unchallenged and she is entitled to rely upon it.

3. I also take account of the affidavit filed by Mr Bailer noting that it was really filed for a different purpose and at an earlier point.  And I note further in that regard that on the last occasion he was before me, he claimed that he had sent another affidavit to the Court which, at that stage, I advised him the Court had not received.  And I made an order which facilitated, notwithstanding that fact, that he could file by sending an email of the document which he says has previously been sent to this Court by email in the nature of an affidavit by sending a copy of it to my legal associate on or before 4 pm on this day.

4. I then offered to facilitate the service of that by saying that the Court would provide for a copy of that to be sent to the mother’s solicitors.  (This was Order 7 made by me on 30 April 2014.)  No such additional affidavit was received on that day and, hence, nothing was forwarded to the mother’s solicitors.  I can only infer from that, notwithstanding his assertion, that the father had not, in fact, sent the earlier affidavit and was, therefore, not capable of complying with my order.

5. As a consequence, I have very limited information about the father’s circumstances.  I have virtually no information about his relationship with his partner.  I have little if no information about where he is living.  I have no information about his employment, if he has any.  I have no information about his ability to comply with court orders, apart from that which I derived inferentially from the material provided by the mother.  In this regard, I note the mother asserts, and I accept as a result of the material that has been tendered this day, that at least in part if not consistently his communications are abusive, unpleasant and contrary to the best interests of the child. 

6. The fact is I am to take into account in determining what orders should be made are those matters set out under the Family Law Act.  This is a matter that if I were to be contemplating making an order for equal shared parental responsibility, certain presumptions would follow thereon.  In this case I note that while that was an order sought by Mr Bailer (or so he informed me in the document he sent) the mother seeks sole parental responsibility and I think in this case, for the reasons I have articulated previously in interim orders, it is appropriate that that should be so. 

7. The parties, as is pointed out in the Family Report, have a poisonous relationship and their communications are far from appropriate for those who would ordinarily be in a position of sharing responsibility for a child.  I am concerned that if there were to be equal shared parental responsibility for the child the consequences would be that decisions necessary for her welfare would not necessarily be carried out.  In those circumstances, I propose to make an order, in the child’s best interests, that the mother have sole parental responsibility.

8. That decision removes the need for me to consider and to make determinations about whether there should be equal time or substantial and significant time for the child to spend with her father.  In any event, neither of those two events would be practicable given the distance between the parties and I do not propose to make any such order. 

9. In fact, I would contemplate making an order that the child not spend time with her father if it were not for the fact that the child’s mother and her stepfather, in his affidavit, have both expressed very strongly the view that the child loves her father, and I accept from her mother that she probably enjoys the time she spends with her father apart from that part of that time when he insists on criticising the respondent mother, Ms Fairlie, and tells the child that he hates Ms Fairlie.

10. I accept that the father has said those things to the child and that she in turn is disturbed by them, and I am clearly satisfied that it is not in her best interests that such a conversation should occur.  It appears to me and I find, based on the evidence I have before me, that the father is incapable of controlling himself and disciplining himself when it comes to expressing his frustration and anger, and it would be in his interest to obtain some professional help to overcome this unfortunate character trait which is already having an effect upon the child and is preventing her from achieving the potential which he might otherwise achieve.

11. In this regard, I rely in part upon the comments made by the Family Consultant in the report that is before the Court.  I accept that if the child is to spend time with her father, the only practical time that she could spend with him is as the arrangements have been in place for some time - although they are not formally in place, because the last set of orders I made discharged the earlier orders about the time that the child would spend with her father.  So the new orders that I make today are, in fact, that;  new orders rather than the continuation of the old ones.

12. I am satisfied that it is likely that the arrangements about the time that the child spends with her father will be fraught with some difficulty because of the apparent inability of Mr Bailer to get himself organised in advance sufficiently to give notice, and I propose to incorporate into the orders a provision that says that unless he gives notice 14 days before the proposed commencement of the time that the child will spend with him, that time will not occur.  That should provide a degree of certainty as to what will happen and it seems to me it is in the child’s best interests that she not be disappointed if her father is, for some reason, unable to organise himself to spend time with her.

13. So far as the additional contact that she might have with him, the only reasonable additional proposals that were previously suggested, that is that he ought to be able to have her for one weekend in each school term if he is able to get himself to C Town and should give appropriate notice about that;  again, not less than 14 days before it occurs.  In this regard, I note that he has not exercised that arrangement during the time that the matter has been before me.

14. I further note that he has sporadically been in contact with the child by telephone or by Skype and, in this regard, although the orders previously made had not been adhered to.  And I am satisfied from the mother’s evidence that she has permitted him to make other telephone calls - in effect, to suit him.  This has apparently given rise to further abusive comments from Mr Bailer and this illustrates, again, the importance for him to obtain some form of counselling to assist him to overcome what appears to be an inability on his part to control his emotions and to refrain from doing things which would not be in the child’s best interests.

15. The matters that I would otherwise take into account in determining what orders I should make are these.  First, I am satisfied that the child would like to spend some time with her father, although I accept that she would like her father not to be critical and abusive and unpleasant about her mother while she is enjoying that time with him.  It would be in Mr Bailer’s interest to ensure that he restrains himself from such conduct to ensure that he maintains and preserves the love of his daughter for him.  He is very fortunate that his daughter continues to love him, notwithstanding the fact that he engages in conduct which would in many respects alienate him from her.

16. The second factor I take into account is the obligations that each of the parents have in relation to the child.  In this regard, I am satisfied that the mother is exercising proper supervision and care and is looking after the best interests of the child in her day-to-day activities with her.  I note the father’s implied criticism of the mother relating to the anxiety habit that the child developed previously of either sucking on or chewing her lip, which I accept from the mother has diminished since she has been substantially separated from her father and living with her mother in C Town. 

17. I note further that the father’s allegations about cleanliness and, in particular, about her vulval or vaginal infection are matters about which he has no direct evidence and I am satisfied again from the mother’s evidence that these are no longer problems.  The father’s responsibility as a parent has been largely notable by its absence in the sense that his contributions, financially, to the child’s welfare are insignificant.  The father has, moreover, failed apparently to make payments in accordance with Order 6 made by me on 30 April relating to the mother’s costs of the previous proceedings as a result of an adjournment that he sought.

18. He has also failed to co-operate more effectively and, in this regard, I accept the mother’s evidence about the arrangements relating both to telephone calls and to the physical transport of the child to see him on a regular basis.  He has also failed to provide any evidence to this Court, as he had the opportunity to do, about how he sees the future for the child, how he sees his relationship with the child, how he feels he can contribute to her best interests.  Even allowing for the fact he does not have a lawyer, it seems to me that Mr Bailer has chosen, for whatever reason, not to put before this Court, even in a simple fashion, the important matters that he says should occur for the child.

19. The other factors that I take into account are these.  the child’s age means that it is necessary for her to have some contact with her father.  I note what the Family Consultant has said about her development and the importance of the time that she might spend with her father.  I note further that the child appears, notwithstanding in some cases her parents, but, more particularly, her father’s best attempts to bring about a situation where she was subjected to conflict and, in some cases, violence, seems to be a very balanced young girl who is capable of dealing with the fact that her parents are incapable of sublimating their animosity to each other in her interests. 

20. I take account also of the nature of the relationship between the child and her father over a period and the fact that the existing arrangement, as the Family Consultant has commented, may not be desirable but is probably the best that can occur in the circumstances.  Accordingly, I propose to make orders which will affirm first, the mother’s sole parental responsibility for the child; second, arrangements which ensure that the child does spend time with her father and I will preserve – though with a degree of reluctance – some flexibility in relation to these things.

21. In this regard I deliver a warning to the father through this judgment that if he exploits and abuses the possibility of there being any flexibility then it might be open to Ms Fairlie to make an application to this Court to discharge the arrangements about the time that he would have with or communicate with the child.  It is a matter for him to control himself.  It is not a matter for me to make arrangements to allow someone who is not capable of controlling himself apparently to do what he wants to do.

22. I will make further orders permitting Mr Bailer to communicate with the child by telephone.  I contemplated the fact that if he did not call at designated times that might be the end of the matter, but I think in the end I accept that the mother has appropriately, and in the child’s best interest, persisted with allowing Mr Bailer to contact the child, notwithstanding he has not complied with previous arrangements.

23. However, I will re-nominate the two times that he is (during the week) to formally contact her on the basis that if he is to make any other arrangements then he may find that alternative arrangements are not possible, particularly if he engages in abusive text messages or telephone calls to make those arrangements the orders will so specify.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 21 July 2014.

Associate:  C Herba

Date:  29 April 2015