Fawkner and Fawkner

[2008] FamCA 1240

FAMILY COURT OF AUSTRALIA

FAWKNER & FAWKNER [2008] FamCA 1240

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Best interests of the child
FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

Rice v Asplund (1979) FLC 90-725
D v Y (1995) FLC 92-581

APPLICANT: Ms Fawkner

RESPONDENT:	Mr Fawkner
FILE NUMBER:	MLF	884	of		2005

DATE DELIVERED: 1 December 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 1 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ackman, QC

SOLICITOR FOR THE APPLICANT:	Nicholes Family Lawyers
COUNSEL FOR THE RESPONDENT:	In person

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Ackman, QC

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

Ms Phelan

Victoria Legal Aid

Orders

1. All parenting orders relating to the children of the marriage J born … November 2002 and O born … September 2004 be and are hereby discharged.

2. The wife have the sole parental responsibility of and for the said children.

3. The said children live with the wife.

4. All questions of the husband spending time or communicating with the children be reserved.

5. Liberty be reserved to the husband to apply for an order in accordance with reservation in paragraph 4 hereof PROVIDED HOWEVER that no such application be made until the husband has complied with paragraph 1 of the order made by Justice Cronin on 21 April 2008 requiring the husband to attend for psychiatric assessment.

6. The husband pay the costs of these proceedings as assessed as follows:

   a.to the wife in the sum of $4500; and

   b.to the Independent Children’s Lawyer in the sum of $670.  

7. The costs awarded pursuant to paragraph 6 hereof be stayed for 6 months from this date.

8. All extant applications be otherwise dismissed and removed from the Active Cases List.

9. General liberty be reserved to both parties to apply.

IT IS CERTIFIED

10.Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel including Senior Counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 884 of 2005

MS FAWKNER

Applicant

And

MR FAWKNER

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is an application by the wife on a Form 1 filed on 7 November 2008 seeking that the two children of the marriage live with her and that she have sole parental responsibility of and for them.

2. The parties married in February 2001 and separated approximately a year later.  The husband is aged nearly 34, the wife is aged 34.  There are two children - a boy born in November 2002 aged 6 and a girl born in September 2004 aged 4.  Proceedings commenced between the parties in February 2005 by way of initiating application by the wife, responded to by the husband on Form 1A on 8 March 2005.

3. The issues were both as to the children and the alteration of property interests.  The latter has been resolved and only questions relating to the children remain. 

4. The relevant litigation history of this matter is as follows:  an Independent Children's Lawyer, then a Child Representative was appointed in March 2005 and minutes of orders were made settling the parties’ financial matters on the same day.  In addition, interim orders were made with regard to the children providing that each of the parties retain responsibility for their care, welfare and development and that they live with the wife.

5. Interim orders for what was then known as "contact" by the father were provided with the girl each Monday and Wednesday from 8.30 to 9.30 am and with the boy each Monday and Wednesday for two hours and each Friday for about seven hours and otherwise as agreed.  Questions of changeover for purposes of contact were also dealt with in that order.

6. Further orders were made for contact in June 2005 with the children continuing to live with the mother.  Guest J in September 2005 ordered that the parties attend Ms D for a purpose of a report by way of a Welfare Report, and of importance are the orders on 20 October 2005 made by a Registrar.  On that day all parenting orders were discharged and interim orders for contact by the husband with the children were discharged, and alternative interim contact orders were made giving the husband a further amount of contact apparently on three days of each week for limited times during those days - the details of which are not important.

7. A further order was made for a psychologist to prepare a report and various other matters not presently relevant.  The matter came before the Registrar in January 2007 on which date a further order was made for the appointment of what was then known as the Child Representative. 

8. In addition, on 21 April 2008 are certain consent orders made by Cronin J with respect to passports and like matters which are not presently relevant, but of great importance is his Honour's order per curiam requiring in paragraph 1 that the father attend upon a psychiatrist nominated by the Independent Children's Lawyer for the purpose of an assessment generally as to his mental health and any other matter relating to issues associated with his capacity as a parent.  It is common ground that this has not occurred and it is not suggested that anyone other than the husband is responsible for that noncompliance.  He says that the reason for the noncompliance is a lack of financial capacity which is something that cannot be placed at the feet of the wife or the Independent Children's Lawyer.

9. His Honour otherwise struck out all applications with a right of reinstatement, on certain conditions.  Paragraph 7(c) is relevant to that question which provides that the applications might be reinstated upon one party satisfying -

   the coordinating registrar that he or she is ready to proceed but the other party is not making any genuine attempt to progress the matter for trial and accordingly wishes to pursue orders on an undefended basis.

10. On 31 October 2008, the Regional Coordinating Registrar considered an application by the wife to reinstate her originating application of 18 February 2005 as amended on 5 July 2007.  The Registrar ordered that the application of 18 February 2005 as amended be reinstated and ordered that they be listed first in the registrars' procedural hearing list today from where they have been transferred to me in the Judicial Duty List.

11. All parties were required to appear and/or be represented on the adjourned date.  The wife was ordered to cause certain documents to be served by way of ordinary service upon the Independent Children's Lawyer and the respondent and those documents were named.  Paragraph 5 of the order states -

    Subject to service pursuant to paragraph 4 hereof in the event that the respondent does not comply with the paragraph 3 of these orders, the applicant have liberty to apply to have her Application for Final Orders proceed as though undefended on that day.

12. Paragraph 3 referred to in that order refers to the requirement of the parties’ presence either with or without legal representation.  Proceedings have come before me today in the Judicial Duty List at which time the wife has been represented by senior counsel, the husband has represented himself, and the Independent Children's Lawyer has been represented by a senior member of junior counsel.  The only material before the court is that filed on behalf of the wife - material which I have read - together with previous material, particularly reports of Ms D to whom I have previously referred.

13. It is common ground that the last document filed by and on behalf of the husband was so filed on 20 October 2005 and was an affidavit sworn by him on 31 August 2005.  That is with the exception of two notices of address for service, the second of which was filed on 9 July 2007.

14. The immediate question before me today is whether I should proceed to determine the wife's application on an undefended basis or whether I should grant the husband an adjournment to enable him to file documents.  As I have already referred, the two issues raised by the wife's application are for an order that the children live with her and that she have the sole parental responsibility for them.

15. During discussion, particularly with the husband, he sought to attribute responsibility for his lack of documentation and lack of involvement in these proceedings to all sorts of factors other than himself.  His basic argument with respect to any order that the children spend time with him and the apparent failure of such orders to which I have previously referred to seeks to blame the wife, but there's no contravention application brought.  On his part, while he does not use the precise term, he seems to be suggesting that the wife has or is in the process of alienating the children from him and he is very critical of her for that, despite the fact that at least, to his credit, he accepts that she is an excellent mother.  How she can be an excellent mother and at the same time alienate the children from him is a contradiction which has not been explored, but may be explored at some time in the future.

16. Senior counsel for the wife seeks orders in accordance with the wife's application and that is supported by counsel for the Independent Children's Lawyer.  The husband has opposed that, insofar at least as the parental responsibility application is concerned.  While it is not absolutely explicit, it seems to me that fundamentally he is conceding that an order should be made that the children live with the wife.  Particularly given that he says that she is an excellent mother, it seems to me that that is an overwhelming correct position to take.

17. On the question of whether an adjournment should be granted to the husband, I recognise that he is self-represented and that he does not have knowledge of the law, particularly as it has applied since the amendments in July 2006.  I have sought from him his submission with regard to what he would say in the event that I were to grant him the liberty of an adjournment without making any orders today.

18. He is concerned that if I were to make orders in accordance with that sought by the wife, that would hand too much power to her, as a result of which an application that he spend time with the children may consequently suffer.  I do not agree with that.  Any application that he spend time and/or communicate with the children can be heard in isolation. 

19. In addition to that, a consideration of all the matters in Part VII, which it is not necessary to detail, would indicate that such orders are appropriate.  Clearly, these proceedings must be heard on the basis that the best interests of the subject children are the paramount concern.  I take account of the objects and principles in section 60B in considering the question.  It is quite clear that, if possible, a relationship between the children and their father - which appears to be fractured for whatever reason which I am unable to determine here - should be reinstated.  Nothing in what I am proposing to order today will prevent that from occurring.

20. The lack of involvement in the upbringing of the children makes an order for sole parental responsibility in favour of the wife quite clear, and I find in all the circumstances that that is in their best interests.  In addition to that, the status quo alone and the concession by the husband that the wife is an excellent mother makes it equally clear that there should be an order that the children live with her. 

21. I am proposing to dismiss all interim orders.  The present orders for what used to be known as "contact" are now completely inefficacious.  They are several years old, they clearly are not being complied with for whatever reason, and the whole issue of contact is to be reconsidered upon the application on terms which I shall shortly state.

22. I have been worried about the consequence of a dismissal of the orders with regard to the doctrine in Rice v Asplund (1979) FLC 90-725 as developed by the full court D v Y (1995) FLC 92-581 and other cases. But on reflection, it seems to me, without seeking to bind any future judge considering this matter, that that is of no significance. The reality is that, given the time that has elapsed, the question of the status quo may be, in my preliminary view, more important than the doctrine in Rice v Asplund (supra).  In those circumstances, I am not troubled that I will put a further hurdle in the way of the husband for what is already a significant difficulty that he has, principally because of his failure to participate in these proceedings for some time of just over three years.

23. In the circumstances it is appropriate, then, for me to make an order for sole parental responsibility in favour of the wife, that the children live with her, that all previous parenting orders be otherwise discharged, and I propose reserving all questions of any order that the children spend time or communicate with their father to enable the consideration of that matter without any undue technical legal hurdles.

24. However, I am proposing to make an order that no such application be made until the husband has complied with paragraph (1) of the order made by Cronin J on 21 April 2008 with regard to the husband attending for a psychiatric assessment as required in that order.  Otherwise the proceedings will be removed from the list.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date:  17 April 2009