Fife and Fife (No 2)

[2011] FamCA 189

FAMILY COURT OF AUSTRALIA

FIFE & FIFE (NO 2) [2011] FamCA 189

FAMILY LAW - CHILDREN – where the mother seeks that previous consent orders providing for the children to spend time with the father be discharged – where the mother seeks fresh orders that she have sole parental responsibility for the children and that they live with her – where the father has been sentenced for assault on the mother and one of the children – where the father has failed to participate in the proceedings in any way – best interests – orders that the previous consent orders be discharged – further orders that the mother have sole parental responsibility for the children and they live with her

FAMILY LAW - PRACTICE AND PROCEDURE – where the father has continually failed to attend contravention proceedings initiated by him – orders that the proceedings be dismissed

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Fife

RESPONDENT: Ms Fife

FILE NUMBER: ADC 3346 of 2007

DATE DELIVERED: 11 March 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 11 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Bowler

SOLICITOR FOR THE RESPONDENT: Martin Robinson Solicitors

Orders

1. The father’s Contravention Application filed on 30 November 2010 is dismissed.

2. Paragraphs 2, 3, 4, 5, 8, 9 and 10 of the Order of the Court of 22 July 2010 are discharged.

3. Paragraph 1 of the Order of the Court of 22 July 2010 is discharged and in lieu thereof:

   3.1the mother have sole parental responsibility for the children A born … August 1998 and C born … April 2000;

   (a)       the children A and C live with the mother.

1. All matters are removed from the pending list.

IT IS NOTED that publication of this judgment under the pseudonym Fife & Fife (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3346 of 2007

Mr Fife

Applicant

And

Ms Fife

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. Initially this matter came back before the Court by way of an application concerning contravention filed by the father on 29 November 2010.  At earlier hearings in relation to the matter, the father failed to attend and he was placed on notice by the orders of 3 February 2011 that if he failed to attend this morning’s hearing, the Court would give consideration to dismissing the contravention proceedings.  The order was sent to the father at his last known address.  The father has failed to attend this morning.  The father was called by the Court Officer and he has not attended and it is now nearly 9.30 am.

2. Bearing in mind the allegations in the contravention and the background to the matter, I am also satisfied that it is appropriate in these circumstances to dismiss the contravention proceedings and I do so. 

3. The mother has also filed an application on 9 December 2010 seeking certain orders in relation to the discharge of orders which were made by consent on 22 July 2010.  Specifically the mother now seeks that she has sole parental responsibility for the children and that the orders which relate to the father spending time with the children and the father attending functions and communicating with the children be discharged.

4. It is unusual to make significant orders discharging recent consent orders in matters particularly concerning children but the Court must consider the best interests of the two children.  A was born in August 1998 and is now 12 and C was born in April 2000 and is now 10 nearly 11.  The children have been residing primarily with the mother most of their lives and have spent time with the father from time to time.  However, the significant factor in this matter is the incident which took place on 30 September 2010 when at an attempted handover there was an incident.

5. The particulars are set out in the affidavit of the mother filed on 9 December 2010.  It is significant that the father has since pleaded guilty to and has been sentenced for two charges of assault, one upon the mother and one upon the child C and for damaging property.  He has been placed on a good behaviour bond for three years. 

6. Section 60CC states that one of the primary objects that the Court has to consider is the need to protect the children I also consider the provisions of section 60CC so far as they relate to family violence.

7. Taking into account the background to the matter, the concerning information of the assault not only upon the mother in the presence of the children but upon one of the children and the material annexed to the mother’s affidavit, I am satisfied that it is in the best interests of the children that the orders which the mother seeks be made.  I do so also on the basis that the father was given considerable opportunity to file his answering material.  When he defaulted in filing any answering material, the time for him to do so was extended.  He has failed to file any response or answering affidavits and has failed to attend these proceedings.

8. Therefore it is in the best interests of children to bring to an end the proceedings in this Court and to make the orders the mother seeks. 

9. I take into account that that will discharge the orders which provides for the father to spend time with the children or to communicate with the children but in the present circumstances based upon the father’s past behaviour, I am satisfied that they are orders which are in the best interests of the children.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 11 March 2011.

Associate: 

Date:  18 March 2011