Fletcher and Littlemore

[2019] FamCA 119

FAMILY COURT OF AUSTRALIA

FLETCHER & LITTLEMORE [2019] FamCA 119

FAMILY LAW – CHILDREN – undefended hearing – where the father has withdrawn from any active participation in the proceedings – final orders made for the child to live with the mother and spend time with the father as agreed between the parents.

Family Law Act 1975 (Cth)
Fletcher & Littlemore [2018] FamCA 1126
APPLICANT:	Ms Fletcher

RESPONDENT: Mr Littlemore

FILE NUMBER: BRC 6093 of 2010

DATE DELIVERED: 13 February 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 13 February 2019

REPRESENTATION

THE APPLICANT APPEARED IN PERSON

NO APPEARANCE BY THE RESPONDENT

TOWN AGENT FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms C Bint

INDEPENDENT CHILDREN’S LAWYER:

Ms E Rayment

ELR Law

Orders

1. That the child, X born … 2009 (“the child”) live with the mother.

2. That the mother have sole parental responsibility for long term decisions concerning the child.

3. That except in the event of an emergency, the mother consult the father about decisions to be made in the exercise of her sole parental responsibility on the following basis:

   (a)The mother will give the father in writing details of the decision that needs to be made, what decisions she proposes to make and the reasons why she proposes the decision be made in a particular way;

   (b)The father will respond to the mother, if he wishes to suggest any variation or alternative proposal within seven (7) days of receiving notice;

   (c)The mother will consider any feedback given by the father by reference to the best interests of the child;

   (d)The mother will inform the father in writing within seven (7) days of the decision she has made.

4. That the child spend time and communicate with the father at all times as may be agreed between the parents in writing.

5. That the parents each keep the other informed of an email address at which they can be contacted and provide the other parent with notice of any change to that email address within fourteen (14) days of any change.

6. That the mother keep the father informed of the child’s residential address and provide the father with notice of any change to that address within fourteen (14) days of any change.

7. That this Order hereby provides the necessary authority for the father to obtain, at his expense, information and copies of documents relating to the child’s education, including, school reports and photographs directly from the school.

8. That the father be at liberty to send to the child correspondence, birthday and Christmas gifts, with the mother to ensure that the child receives those items.

9. That the mother be at liberty to obtain a passport for the child in the absence of the father’s consent.

10. That the mother be at liberty to remove the child from the Commonwealth of Australia for the purposes of holidays without the consent of the father.

11. That the Independent Children’s Lawyer be discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6093 of 2010

Ms Fletcher

Applicant

And

Mr Littlemore

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. This is a sad case in many ways.  X, who is now 10 years of age, has, as the history reveals from earlier Reasons I delivered in this matter on 20 December 2018 (see Fletcher & Littlemore [2018] FamCA 1126), spent extensive time with both the father and the mother. The events which caused time to cease are documented in my earlier Reasons, and I do not repeat them. Obviously, a consequence of the child not seeing the father is not only that she misses the opportunity to develop and maintain that relationship with him, but she also misses the opportunity during her infancy to develop and maintain a relationship with her male sibling Y who lives, on the evidence, primarily with his father.

2. As I have indicated earlier, the reasons why the Court elected in somewhat unusual circumstances to consider a discrete issue of risk was because it appeared to the Court that it was an area that had caused most likely the cessation of time and that by dealing with that area there was a hope that the mother and father might - in view of their previous capacity to make arrangements by consent for the best interests of X ‑ be able to reach some further agreement as we move forward.  The mother, in her material that had been prepared for trial, expresses other concerns about the father.  The father, in his material, expressed concerns about the mother.

3. It is my view that it would have been in the best interests of the child for the child to have time with both parents.  However, for reasons which the father explains in an affidavit that he filed on 18 January 2019, he has effectively decided not to participate in these proceedings further and also has decided not to play an active role in the life of his daughter now.  Whether that changes in the future, the Court cannot know.

4. As I say, in my view, it is not a good outcome for the child, but where the father now chooses not to pursue any application for time with the child, it would not be appropriate, in my view, for the Court to require the mother to make the child available for time when the father has given no indication that he will ever turn up and attend.  To do so would be putting the mother at risk of contravention proceedings, which would not be fair to her.  The father’s apparent relinquishment of any interest at this stage in his child’s best interests or having a relationship with her, whilst tragic, has certain practical consequences, in my view.

5. It is, as the Independent Children’s Lawyer contends, appropriate that the mother have sole parental responsibility for long-term or major decisions concerning the child.  The order proposed by the Independent Children’s Lawyer now to finalise these proceedings, which draws the support of the mother, provides a suitable process by which the mother is to keep the father informed.  I would not, in this case, have made an order that the child not spend time with the father.  As I have already indicated in the Reasons I delivered, as a result of a discrete hearing I chose to undertake about sexual abuse, I do not find that the child is at risk of sexual abuse in the father’s care.

6. I note that the mother raised other concerns about the father, as I have indicated, and the father had raised in his material concerns about the mother.  I believe in the circumstances, therefore, that the order proposed by the Independent Children’s Lawyer and consented to by the mother that “the child spend time and communicate with her father at times as may be agreed by the parties in writing” is the appropriate order.  I have concerns that when Courts make orders specifically saying that no time shall occur it is very easily identified and often interpreted by persons reading such orders that the Court has made a finding of risk against that parent.

7. As I say, in this case I have not.  Appropriately, the orders proposed by the Independent Children’s Lawyer provide for the parties to keep each other informed of their addresses so the communication can take place and to provide for the father to be able to send to the child correspondence, birthday and Christmas gifts.  That is appropriate.  Again, as my earlier Reasons as to the risk issue identified, at times, this child has either had an equal time order or for a period of some months was in the primary care of the father.

8. It is a tragic, in my view, outcome for this child that the father has, at this stage of his journey, felt compelled to withdraw from any active participation in the proceedings and, as a result, an active participation in the child’s life.  For the reasons given, I am satisfied that the orders proposed by the Independent Children’s Lawyer, supported by the mother, are in the best interests of the child.  I make those orders on a final basis.

9. I also order that the Independent Children’s Lawyer be discharged.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 13 February 2019.

Associate: 

Date:  7 March 2019