Fitzgerald and Fitzgerald

[2008] FamCA 413

FAMILY COURT OF AUSTRALIA

FITZGERALD & FITZGERALD [2008] FamCA 413

FAMILY LAW – CHILDREN – Parenting orders – With whom a child lives – No appearance by mother

Family Law Act 1975 (Cth)

APPLICANT: MR FITZGERALD

RESPONDENT: MRS FITZGERALD

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 9136 of 2007

DATE DELIVERED: 26 MAY 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 26 MAY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS O'CONNELL

SOLICITOR FOR THE APPLICANT: CAHILL & ROWE

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR FRIEDMAN

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: AGRICOLA WUNDERLICH & ASSOCIATES

ORDERS

1. THAT within seven (7) days the solicitors for the father cause to be filed with this court the signed and complete report of Ms M, psychologist, and additionally they are to forward a copy of that report to the mother at her last known address and file an affidavit of service in compliance with this requirement.

1. THAT all prior parenting orders be discharged.

1. THAT the father and mother have shared parental responsibility for the children A SON born … August 1995 and A DAUGHTER born … September 1997.

1. THAT the children live with their father.

1. THAT the mother spend time with the children in Melbourne by prior arrangement and at agreed times including on an overnight or weekend basis.

1. THAT until further order the mother is not to bring the son and/or the daughter into physical contact with her partner Mr G.

1. THAT the father is to retain his mobile telephone number … and the mother is to be able to contact the son and/or the daughter on a regular but reasonable basis and to have private conversations with them on that mobile telephone number.

1. THAT a sealed copy of this order is forthwith to be served by prepaid post upon the mother at her last known address by the solicitors for the father and a copy of an affidavit of such service is then to be forthwith filed with the court.

1. Pursuant to s 62B and s 65DA, 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 Fact Sheet a copy of which is annexed to these orders.

1. THAT all extant applications, both interim and final, be otherwise dismissed and the proceedings be removed from the list of cases awaiting hearing.

1. THAT the appointment of the Independent Children’s Lawyer be forthwith discharged.

1. THAT the report of Ms M received into evidence this day be marked as exhibit “1” and be retained upon the court file.

1. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9136 of 2007

MR FITZGERALD

Applicant

And

MRS FITZGERALD

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Fitzgerald MLF 9139 of 2007 has been transferred from the Registrar's court to this Judicial Duty List.  This is an extempore judgment.  Ms O'Connell of counsel appears for the husband, Mr Friedman of counsel as the Independent Children's Lawyer for the two children the subject of the competing applications before the court.  There is no appearance by the mother.  Previously she was represented by Victoria Legal Aid by they filed in this court on 21 April 2008 a notice of ceasing to act.

2. In that document they advised that her last known residential address is W Street, C, South Australia.  Seemingly this time around and on this file, as distinct from file MLF 10731 of 1999 the proceedings first came before his Honour Guest J on 30 August 2007. His Honour gave brief extempore reasons for judgment, and thereafter I observed that the matter was before other judges, including myself, and before the Senior Registrar on various dates late last year.

3. The most recent and substantive order is that of 28 November 2007.  By this order all previous parenting orders were discharged and, on an interim basis, the children were primarily ordered to live with their father.  There was a designated period in January of this year where they were to holiday with the mother, and otherwise there was an ongoing period on a weekend time to be spent in Victoria by the mother with the children.

4. Paragraph 5 of those orders of 28 November 2007 provided for a report to be prepared at the joint expense of the parties by Ms M, psychologist.  That report has been handed to me, though I have no evidence that it has been provided to the mother or otherwise whether it is properly filed with the court.  The Independent Children's Lawyer has provided a copy to me which I have read.  As a requirement the original of this document must be filed with the court.  The report was prepared upon a series of interviews with the father's stepmother and the children, and another child M. 

5. The mother was to attend but did not attend, and hence the history, the facts and observations are all obtained from the father or his family and the children.  Indeed I record that the mother did not attend on three separate occasions notwithstanding her indication that she would, but ultimately a lack of money and finance prevented her travel from South Australia to Melbourne.  The report is dated 19 May 2008 and its recommendations are clear and concise.  They are said to be based on the express views and wishes of the children.

6. The recommendation is that the children remain in the permanent primary care of their father and stepmother. The children wish to see their mother subject to a suitable arrangement and within Victoria. How and when any such future visits can or will be organised remains a very complex issue. The overriding obligation of the court is to act in the best interests of children. How those best interests are determined is clearly set forth in section 60CC of the Family Law Act, both as to primary and additional considerations. I have sighted the more recent affidavit material but primarily Ms M’s report. I have the strong and unqualified recommendation from counsel acting for the children that final orders should be made. The benefit of final orders is an end of legal proceedings and that brings a level of certainty to the children as to their lifestyle, accommodation, schooling and other important factors.

7. It must be understood that there is no intention of the court in any way to unreasonably limit the mother's time with the children though clearly it must be beneficial to the children.  It must be properly structured and on what I have read must be within Victoria.  I of course will not make any order by consent.  I am somewhat troubled by the fact that the mother has chosen to remove herself from participation in the proceedings, and certainly from the children's life.  As I understand she has spent time in January and thereafter there has been no direct physical contact but limited telephone time.  The mother must be encouraged and every facility be available for her to talk to the children, and to maintain a relationship.

8. This matter has had a number of adjournments.  The 28 November 2007 orders adjourned the matter to 5 February 2008 at which date it was seemingly adjourned to 12 February 2008 and then to this day.  Whether the mother knows the matter is listed today or has had any contact with her solicitors prior to them ceasing to act or otherwise with the court I do not know.  It will therefore be prudent to reserve liberty to the mother to apply to set aside these orders on proper grounds and material filed.  The obligation will be on the lawyers for the father to serve the mother by pre-paid post, and to do all acts and things to bring these orders to her attention and to file an affidavit of service of all of their endeavours. 

9. As an overview and having regard to the best interests of the child, I would be confident that security and certainty are required for them, and on that basis I will make, subject to the above reservations, these orders as final orders of the court.  I find they are in the children’s best interests.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate:                
Date: 17 June 2008