Flinders & Carmine (No. 2)

[2008] FamCA 1256

FAMILY COURT OF AUSTRALIA

FLINDERS & CARMINE (NO. 2) [2008] FamCA 1256

FAMILY LAW – PRACTICE AND PROCEDURE – no attendance at hearing by the mother – matter to proceed on undefended basis – father unaware where mother and child are living – application for Commonwealth Information Order and Location Order heard ex-parte

FAMILY LAW – CHILDREN – with whom a child should spend time – child has not seen the father for some time – staged approach to the child spending time with the father is in the child’s best interests

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 65DAA, 67N(2), 67M(2), 67(P)

APPLICANT: Mr Flinders

RESPONDENT: Ms Carmine

FILE NUMBER: ADF 2864 of 2003

DATE DELIVERED: 13 August 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 13 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McQuade

SOLICITOR FOR THE APPLICANT: Christopher Ganzis & Co

COUNSEL FOR THE RESPONDENT: No appearance

Orders

1. That the child … born … September 2003 (“the child”) live with the mother.

2. That the parties have equal shared parental responsibility for the said child.

3. That the father do spend time with the said child as follows:

   a.For six sessions at the Y Children’s Contact Service at such times and on such dates and upon such conditions as may be nominated by the supervisor of the said service;

   b.Thereafter on each alternate weekend from 10:00am to 4:00pm on the Sunday for a period of six weeks;

   c.Thereafter on each alternate weekend from 10:00am to 4:00pm on the Saturday and from 10:00am to 4:00pm on the Sunday for a period of 12 weeks;

   d.Thereafter on each alternate weekend from 10:00am on the Saturday to 6:00pm on the Sunday;

   e.In relation to the child’s birthday and Father’s Day in 2008 if possible two of the father’s sessions at the Y Children’s Contact Service take place respectively on the child’s birthday on … September 2008 and Father’s Day on Sunday 7 September 2008;

   f.For a period of not less than four hours on the child’s birthday in each year commencing in 2009 and unless some alternative time shall be agreed between the parties in writing such time shall take place between 4:00pm and 8:00pm;

   g.From 9:00am to 6:00pm each Father’s Day commencing in 2009 if such day shall fall on the day when the child shall not ordinarily spend time with the father PROVIDED however that in the event that Mother’s Day shall fall on a day when the child does ordinarily spend time with the father the said child shall be returned to the mother at 9:00am on Mother’s Day;

   h.For the second half of the Easter weekend in each year commencing at 6:00pm on Easter Saturday and concluding at 6:00pm on Easter Monday SAVE AND EXCEPT in the event that alternative times shall be agreed on any Easter weekend with such agreement being recorded in writing;

   i.For Christmas Day as follows:

   (i)     in 2008 and alternate years thereafter from 3:00pm on 25 December to 6:00pm on 26 December unless some alternative time shall have been agreed in writing;

   (ii)   in 2009 and alternate years thereafter from 9:00am on 24 December to 3:00pm on 25 December unless some alternative time shall have been agreed in writing;

   j.At such further or other times as may be agreed between the parties.

4. That all handovers shall occur at the Y Children’s Contact Service.

5. That in default of the mother signing all necessary documents to ensure that the sessions take place at the Y Children’s Contact Service in accordance with paragraph 3 (a) hereof a Registrar of this Court be appointed to sign such documents in lieu of the mother.

6. That the Application for Final Orders filed by the father on 19 January 2006 and his Application Alleging Contravention filed on 20 December 2007 be dismissed and removed from the active pending cases list.

7. That pursuant to Section 62B and Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.

8. That the Application in a Case filed by the father on 11 August 2008 be heard ex parte.

9. That pursuant to section 67N of the Family Law Act 1975 Centrelink provide the Registry Manager of this Court with information that is contained in or comes into the records of the said Department about the location of the child … born … September 2003 and the mother Ms Carmine born … April 1968.

10. That pursuant to section 67M of the Family Law Act 1975 the Department of Education and Children’s Services provide the Registry Manager of this Court with information that is contained in or comes into the records of the said Department about the location of the child … born … September 2003 and the mother Ms Carmine born … April 1968.

11. That the parties be at liberty to list this matter at short notice upon the mother being served with this order.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 2864 of 2003

MR FLINDERS

Applicant

And

MS CARMINE

Respondent

EX TEMPORE REASONS

Introduction

1. This matter was heard by me as an undefended hearing on 6 August 2008.  I will not repeat all that I said on that occasion, but it falls to me today to deliver reasons for judgment and make orders.  What has held the matter up, though, and why it was adjourned to today was that the mother did not attend the hearing and the father, although he has some suspicions, does not know where she is and, more importantly, where the child who lives with the mother is.  What has been discussed - and, indeed, proposed by me - is that, once I have made the orders in relation to the child, a Location Order and a Commonwealth Information Order be made on the application of the father, and that will hopefully provide an address for the mother at which the order that I will make today can be served.

2. What has happened in the period of the adjournment is as foreshadowed, namely, the father filed an Application in a Case on 11 August 2008 in which he seeks a Commonwealth Information Order and a Location Order.  That application and the supporting affidavit filed with it have been served on the relevant departments, and thus the necessary preconditions to enable me to deal with that application have been met.  I have been provided with a facsimile from Centrelink and also an email from the Department of Education, which satisfies me as to service on those entities. 

3. Unfortunately, I need to repeat some of the things that I said on 6 August 2008, because I had gotten some way into my reasons before this issue of the Commonwealth Information Order and the Location Order were raised. 

4. A brief background to the matter is that the father filed an Application alleging Contravention on 20 December 2007.  That application was listed for hearing before me on 23 July 2008.  The mother did not appear.  There was an issue as to service of the application upon the mother, and that arose in the context of an oral application by the father made on that day for the issue of a warrant of arrest to bring the mother before the court. 

5. In the end result, I dismissed that application and determined to proceed by setting this matter down for a final hearing.  I delivered reasons for judgment on 23 July 2008, and I will not repeat those reasons, but I refer to them generally as necessary background to these reasons and the orders that I make today.  What I did was to list this matter for final hearing on 6 August 2008.  I ordered that the mother file and serve an affidavit of evidence in chief, and I ordered that in the event of the mother failing to attend and/or failing to file any affidavit, that her amended response be dismissed and the hearing proceed on an undefended basis.

6. I recorded on the last occasion that a letter had been sent by this court to the mother at her postal address, which was an address that I was satisfied had been used in the past successfully to forward documents to the mother.  In any event, on 6 August 2008 the mother did not attend, nor did she file an affidavit in the time frame that I allowed, and I made an order dismissing the mother's Amended Response filed on 31 May 2007, and providing for the hearing to proceed on an undefended basis on the father's application filed on 19 November 2006.

7. The father's counsel provided me with an Outline of Case document which set out the orders that are now sought by the father.  Those orders are reasonable orders in the circumstances, of the father not having seen the child for some time.  They seek a staged process to re‑establish the relationship between the child and the father, commencing with supervised time at a Children's Contact Service and reaching hopefully and ultimately a position where the child spends time with the father on alternate weekends.

8. I recall that I raised one or two issues about the orders sought and, in particular, in relation to the order sought about the child spending time with the father on the child’s birthday and also on Father's Day.  As I identified, those two dates are rapidly approaching and, for this year at least, it would be inappropriate to make the order sought.  What I propose to do is to fit those two dates, if possible into that part of the order providing for sessions at the Children's Contact Service. 

9. With that background and with those preliminary comments, I want to proceed with this matter and, as I said on 6 August, I do not need to hear any oral evidence from the father.  I have read all the documents and I will come to those in a moment, I have heard submissions from the father's counsel, and I have the helpful Outline of Case filed on behalf of the father.  I also have my reasons delivered on 23 July 2008 which conveniently set out the procedural history of this matter since the father filed his application alleging contravention on 20 December 2007.  Again, I am not going to reiterate all that I said in those reasons, but I refer to them generally as necessary background to the orders that I make today.

10. Although the application formally before me is the father's Application filed on 19 January 2006, the orders sought are as per paragraph E of the Outline of Case, subject to the comments that I have made above.

11. I should record that another issue I raised with the father's counsel in relation to the orders sought was to introduce an intermediate stage in the process of the father spending time with the child, namely after the completion of the sessions at the Children's Contact Service, instead of moving straight to alternate weekends Saturday and Sunday, there be an intervening stage where the father spends time with the child on one day on each alternate weekend.

The current circumstances of the parties

1. I know obviously very little about the mother's current circumstances, seeing that she has chosen not to take any part in these proceedings and, as I found previously, in my view deliberately so.  She is fully aware of these proceedings, and I should say as well and record that the father's affidavit in support of the final orders that he seeks is an affidavit that has been forwarded to the mother, and I am satisfied that she is well aware of that affidavit and has deliberately chosen not to respond to it.

2. In terms of the father's current circumstances, I refer to his affidavit filed on 11 January 2008 and, in particular, paragraphs 110 and 111.  They provide as follows:

   110.I am currently undertaking some casual labouring work at least once a week. I am currently looking for full time work. In the future my goal is to buy my own home to live in. I wish to build up my relationship with [the child] to the extent that I can spend regular and frequent time with him.

   111.I am in good health and live in a rented 3 bedroom house in […]. There is a spare room with a spare bed. I have collected a number of toys for [the child] over the years which I had intended to give to him in the past. There is a reasonable sized backyard which is completely secure. The house has all the modern conveniences and is close to all facilities. There is a kindergarten next door and a small park next to that. I live a few minutes drive from the […] Hospital.

The evidence

1. The documents relied upon by the father are his affidavit of evidence in chief filed on 11 January 2008 and the annexures thereto.  There is a family assessment report of Ms L dated 24 July 2006, and importantly a report by the Coordinator of the Y Children's Contact Service dated 4 December 2006 providing observations of supervised time that the father spent with the child in 2006. 

The factual background

1. In April 1968 the mother was born.

2. In December 1980 the father was born.

3. In May 2002 the parties commenced cohabitation.

4. In January 2003 the parties separated.

5. On 22 July 2003 a Domestic Violence Restraining Order was taken out by the mother against the father.

6. In September 2003 the parties’ child was born.

7. On 18 November 2003 the father instituted proceedings in this Court.

8. On 12 January 2004 orders were made adjourning the case to 2 February 2004 and for the parties to attend s 62F(2) conciliation counselling on 23 January 2004.

9. On 23 January 2004 the father failed to attend the counselling.

10. On 6 February 2004 orders were made adjourning the case to a trial list, for the parties to attend counselling, by consent that the father’s application filed on 18 November 2003 be adjourned for six months, and granting liberty to apply.

11. On 27 April 2004 the parties attended counselling and agreement was reached that the father could spend time with the child regularly under supervision of the maternal grandmother.  However, shortly after this the mother withdrew her consent and the agreement was never implemented.

12. On 9 December 2004 orders were made directing that the parties and their respective solicitors attend a trial notice list hearing, and that the father file a Birth Certificate within 28 days, and he pay $220 towards the mother’s costs.

13. On 19 January 2006 the father filed another Application for Final Orders.

14. On 12 April 2006 orders were made by Senior Registrar Kelly by consent as follows:

    28.1That the mother do have residence of the said child and be responsible for the said child’s day to day care, welfare and development.

    28.2That the parties attend upon a psychologist for the purposes of the preparation of a report directed to the father’s contact with the said child and that the parties do follow the reasonable requests of the said psychologist for such purpose.

    28.3That the said report be paid for equally by the parties.

    28.4That further consideration of this matter be adjourned to 9:30am on 26 July 2006.

15. On 24 July 2006 Ms L provided a Family Assessment Report in which she made the following recommendations:

    “That a series of weekly, supervised visits take place at the Children’s Contact Centre for up to an hour depending on centre staff’s assessment of [the child’s] comfort with [the father].

    That a report is provided to the Court and the matter then reviewed.

    That [the mother] reconsiders asking her parents to become involved in supervision of contact.

    That [the father] attends a parenting course and speech pathologist.

    That [the father] begins maintenance payments.

    That both parties attend counselling.”

16. On 26 July 2006 orders were made by Senior Registrar Kelly by consent as follows:

    30.1That the father do spend time with the said child at the B Children’s Contact Service or the Y Children’s Contact Service under supervision on four occasions at fortnightly intervals for such time at the discretion of the supervisor but no more than one hour.

    30.2That the parties do all such things to comply with the requirements of the said children’s Contact Service to enable the father to spend the specified time with the said child.

    30.3That the father do provide to the mother on the day of each period he spends time with the said child the sum of $50 toward her travelling costs.

    30.4That the father do forthwith attend an acceptable parenting course.

    30.5That the father do forthwith attend a speech pathologist.

    30.6That at the conclusion of the fourth occasion the father spends time with the said child a report by the supervisor/s be provided to the Court informing the Court of the interaction between the said child and the father.

    30.7That further consideration of this matter be adjourned to 9:30am on 23 November 2006.

    30.8That the Form 1 Applications be referred to the trial notice list.

17. On 4 December 2006 Relationships Australia provided a report of the observations of supervised time.

18. On 22 January 2007 orders were made by Senior Registrar Kelly as follows:

    32.1That the child … born on … September 2003 spend further time with the father on a fortnightly basis at the Y Children’s Contact Service on days and at times to be nominated by the Service.

    32.2That the father do provide to the mother on the day of each period he spends time with the child the sum of $50.00 toward her travelling costs.

    32.3That the parties do all things necessary to:

    32.3.1obtain an up-dated report from Ms L; and

    32.3.2obtain a further report if possible from the Children’s Contact Service.

    32.4That the father do forthwith attend an acceptable parenting course.

    32.5That the father do forthwith attend a speech pathologist.

    32.6That the child spend further time with the father at such times as may be agreed between the parties in the event that agreement is reached regarding a supervisor for such further visits.

    32.7That each party file further affidavit material on or before 16 March 2007 regarding present arrangements and addressing potential supervisors.

    32.8That further consideration of this matter is adjourned to Wednesday 28 March 2007 at 9.30am.

19. On 18 February 2007 the mother cancelled the first session as she was unable to travel to Adelaide.

20. On 4 and 18 March 2007 the sessions did not occur because the father was not working and he could not afford the $50 to pay the mother’s travel expenses.

21. On 1 April 2007 prior to the final session at the Y Children’s Contact Service the father saw the mother at a nearby shopping centre.  He saw the mother and the child and claims that the mother was following him around.  He was concerned that this would cause him to breach the Domestic Violence Restraining Order.  The father says that the child saw him but the father ignored them to avoid any confrontation with the mother.  The father says that at the Children’s Contact Service after this incident the child refused to get out of the car saying that he did not want to see him, and that one of the Relationships Australia staff members was trying for about twenty minutes to coax the child out the car but was unsuccessful.  As a result of this the session was cancelled.

22. On 2 May 2007 the mother’s solicitors filed a Notice of Ceasing to Act.

23. On 13 June 2007 an order was made that there be three further periods of the father spending time with the child, providing that the Y Children’s Contact Service could accommodate these sessions.

24. On 8 September 2007 the father attended a parenting course.

25. On 10 September 2007 orders were made by Judicial Registrar Forbes that a family assessment report be undertaken in relation to the time the child is to spend with the father with the cost of the said report to be shared between the parties, and that the interim applications be dismissed.

26. On 10 September 2007 the mother failed to attend the appointment with Dr C for the purposes of undertaking the family assessment report.

1. On 11 September 2007 at the trial notice list hearing this matter was adjourned to 21 January 2008 for a pre-trial conference.  Orders were also made that each party file and serve affidavits setting out their evidence in chief and that a compliance certificate be filed.

2. On 3 November 2007 the mother failed to deliver the child to the Y Children’s Contact Service.

3. On 17 November 2007 the mother failed to deliver the child to the Y Children’s Contact Service.

4. On 1 December 2007 the mother failed to deliver the child to the Y Children’s Contact Service.

5. On 15 December 2007 the mother failed to deliver the child to the Y Children’s Contact Service.

6. On 20 December 2007 the father filed an Application Alleging Contravention.

7. On 23 July 2008 the father’s Application for Final Orders and the Application Alleging Contravention filed by the father on 20 December 2007 were listed for trial.

The issues in dispute

1. There is no issue that the child should not remain living with his mother.  The issue is the time that he should spend with his father and, ancillary to that, how that should be set up, given the fact that the father has not seen the child now in a meaningful way for some time.  I hasten to add that the primary reason for that is the mother's refusal to comply with orders of this court.  It is certainly not a reticence on the part of the father to pursue spending time with his young son.  He is obviously keen to do that, and the proof of the pudding is in the eating when one looks at the applications that the father has filed and the history of this matter and how he has brought the matter to this Court and how he has allowed the matter to progress in what he has considered to be the best interests of the child.  Unfortunately - and I note as a general comment - that seems to have played into the hands of the mother who has taken advantage of the situation and not sought to progress this matter as she should in the interests of this young child. 

The principles that are applicable

1. In exercising its jurisdiction in relation to children the Family Court is bound by the provisions of the Family Law Act 1975.  The objects of those provisions of the Act relating to children are:

   (a)to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the children; and

   (b)to protect the children from physical or psychological harm; and

   (c)to ensure that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. (s 60B(1))

2. The basic principles underlying those objects are that except where it would be contrary to a child’s best interests:

   (a)children have the right to know and be cared for by both parents; and

   (b)children have the right to spend time on a regular basis with and communicate on a regular basis with both their parents and other people significant to their care, welfare and development; and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture. (s 60B(2))

3. Should parties be unable to agree about matters touching upon the welfare of a child and seek orders from the court in relation to that child, the court must in determining whether to make orders regard the best interests of the child as the paramount consideration. (s 60CA)

4. Under the provisions of s 60CC, in determining what is in the best interests of the child, the court must consider the following matters so far as they might be relevant in each particular case, that is:

   Primary considerations

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. (s 60CC(2))

   Additional considerations

   (a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

   (b)the nature of the relationship of the child with:

   (i)   each of the child’s parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   (c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

   (d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i)either of his or her parents; or

   (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)the capacity of:

   (i)each of the child’s parents; and

   (ii)  any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

   (h)if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)   the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

   (j)any family violence involving the child or a member of the child’s family;

   (k)any family violence order that applies to the child or a member of the child’s family, if:

   (i)the order is a final order; or

   (ii)the making of the order was contested by a person;

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)any other fact or circumstance that the court thinks is relevant. (s 60CC(3))

5. The court must also consider the extent to which each parent has fulfilled his or her parental responsibility and has facilitated the other parent in fulfilling his or her parental responsibilities. (s 60CC(4))

6. Each of the parents of a child has parental responsibility for the child subject to any order of the court. (s 61C)

7. Under the provisions of s 61DA(1) when making a parenting order the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. However, this presumption does not apply in certain circumstances, namely if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)family violence.

8. Further the presumption may be rebutted by evidence that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. (s 61DA(4))

9. If the court is to make an order that the parents of the child are to have equal shared parental responsibility for the child the court must consider whether the child spending equal time with each of the parents would be in the best interests of the child. (s 65DAA(1))

10. If the court does not make an order for the child to spend equal time with each of the parents the court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child. (s 65DAA(2))

Discussion

1. The important evidence that is before me, and which bears upon the factors that I have to take into account in determining what is in the best interests of this child really stem from the reports of Ms L and the report of the Coordinator of the Y Children's Contact Service that I have referred to already.  Although Ms L’s report is now somewhat dated - it was provided in July 2006 – it was nevertheless still highly relevant.  It is Annexure “JCF7” to the affidavit of the father, and it was a report prepared following upon interviews with both the mother and the father and a brief observed interaction of the child with the father in 2006. 

2. Ms L said this under the heading “Summary of Key Issues”:

   “[The mother] presented as very anxious about [the father] having contact with [the child] who is now aged 2 years 10 months. [The mother] was also very upset about [the father] stalking and harassing her and said she believes him to be psychologically unstable. She talked about not being able to trust [the father] and said that he lied continuously while she was with him. [The mother] rejected the idea of supervised contact and said that she is fearful that [the father] will somehow psychologically harm [the child].

   [The father] is a person with a speech difficulty which he reports resulted from trauma in childhood. Despite his speech problem, he was understandable at all times and expressed himself well and fully. [The father] talked about being committed to seeing his son and not wanting [the child] to be affected by his parents’ conflict. He reported a troubled and deprived history, which, on his account, he is working hard to turn around. He spoke about obtaining regular employment for the first time, (he is now aged 26 years), maintaining accommodation and wanting to improve his literacy skills. [The father] acknowledged that his previous stalking behaviour when he rang and wrote to [the mother] was highly inappropriate.

   [The child] is a delightful, nearly three year old boy who has speech problems but in all other ways, is progressing well. Observation was conducted for only a short time as [the child] was not familiar with either me or [the father]. [The father] was appropriate at all times however and both verbally and non verbally communicated that he was pleased to see [the child].

   Although [the mother’s] view of [the father] is that he is psychologically unstable and could in some way harm [the child], I cannot see anything indicating that there should be no contact at all at this time. I note that [the father’s] deprived childhood is likely to have left him with comparatively few emotional resources, especially in the area of relationship building. However, I also note that he readily acknowledged the inappropriateness of his behaviour with [the mother], that he expressed willingness to attend a parenting course or anything the Court required of him and that on his account, he was working steadfastly to improve himself and his life, in particular by maintaining regular employment.

   Although these are positive signs that [the father] has been trying to establish himself in a stable normal lifestyle, it [sic] important that he does not underestimate the impact of his previous behaviour on [the mother], who gave the impression of still being quite distressed about it. Equally, although understandable, it is important that [the mother] does not allow her previous difficulties with [the father] to fuel her current anxieties.

   My view is that [the child] should have a series of supervised contact periods with [the father] at the Children’s Contact Centre. My suggestion is that because [the child] is still so young and unfamiliar with [the father], the centre staff judge how long [the child] is able to happily stay in his father’s company and then build this time up to an hour. I suggest also that the visits are weekly. I am aware that [the mother] will have a 2½ hour drive each way but I do not know how this can be avoided as there are no such facilities in the country where she lives. Perhaps she can combine these visits with other activities while in Adelaide.

   The matter could then be reviewed and a report provided to the Court so that further deliberation could occur. If all goes well at these visits, the issue will be who could supervise the contacts afterwards so that [the child] can continue to become comfortable and familiar with his father. I would urge [the mother] and her parents to reconsider either of [the child’s] grandparents perhaps supervising for a while at least.

   In the meantime, I think it is important that [the father] attends a parenting course and seeks assistance from a speech pathologist (I have suggested to him that his GP may be able to help him find someone in the public health system, eg at a Community Health Centre). I also think [the father] should begin maintenance payments.

   I further think it is important that both parties work on building trust; [the father] by demonstrating he can be reliable and appropriate with [the child] and [the mother], [the mother] by supporting [the child’s] contact with his father. I think that both parties could also benefit from counselling, both for support and to deal with their respective issues. [The mother] in my view needs to calm herself about [the father] and [the father] needs to consolidate learnings he has made on emotional issues, both with regard to his traumatic family life and his relationship with [the mother].”

3. To repeat, the recommendations of Ms L were that a series of weekly supervised visits take place at the Children's Contact Centre and that there be a report following those sessions.  In addition there were requirements that Ms L put upon the parties, and in relation to the father, that he attend a parenting course, attend upon a speech pathologist, and that he begin maintenance payments.  She further proposed that both parties attend counselling.

4. As a result of those recommendations, an order was made for the father to spend time with the child at the Children's Contact Service.  That order was made on 26 July 2006.  The mother did comply with those orders, and the father did spend time with the child at the Children's Contact Service, and that is the subject of the other important report which is before me, which is annexure “JCF2” to the affidavit of the father.  As I say, it reports on observations of the supervised time - namely, on 24 September 2006, 8 October 2006, 22 October 2006 and 26 November 2006.  Bearing in mind that, again, at that time the father had not seen the child for some time and, bearing in mind the child's age, the circumstances of this case and the influences that obviously the child was subject to, in a general way that was a positive report as to the relationship between father and child and, indeed, so much so that when the matter came back before the Court on 22 January 2007 orders were made for the child to spend further time with the father on a fortnightly basis at the Contact Service.

5. Unfortunately, though, none of that occurred.  The father in his affidavit sets out in detail what happened in relation to each of the sessions that were arranged.  The long and the short of it is that they were unsuccessful for a number of reasons, not necessarily on this occasion entirely the fault of the mother.  There was a practical circumstance, namely, that the father was ordered to provide the mother with $50 towards her travelling costs and the father unfortunately was not able to always do that.  Thus that was a practical impediment to at least one and maybe more of the sessions that were arranged at that time occurring.

6. Just digressing, in terms of the requirements that Ms L put upon the father, he diligently attended to those.  He attended upon a speech pathologist, and there is a report from a speech pathologist which is annexed to his affidavit, and that is annexure “JCF3”, and I treat that report as before me.  Importantly, it says that the father's speech issues would not influence the development of his child's speech and language.  Thus what I take from that report is that the father's speech issues are not an impediment to the child spending time with the father.

7. It was suggested that the father attend a parenting course and, indeed, that was followed through with an order of this court to that effect.  He had difficulty finding an appropriate course, but ultimately he did and there is a certificate of his attendance also annexed to his affidavit (annexure “JCF5”), which relates to a course that the father attended in 2007.  It was a six‑week course run through Relationships Australia and it was a course which certainly complies with the order of this court and the recommendation of Ms L.

8. The matter came back to this court again, and there were orders made on 13 June 2007 providing for further sessions at the Children's Contact Service.  However the mother did not comply.  The matter came back before this court again and another order was made for further time at the Children's Contact Service and for an updated family assessment report, but the mother again failed to comply with those orders.  She failed to attend the appointment arranged for the purposes of the updating of the family assessment report and she failed to deliver the child to the Children's Contact Service.  Those issues are the subject of the father's Application alleging Contravention, filed on 20 December 2007.

9. The father has had a sad history as a child and he sets that out in some detail in his affidavit.  He was the subject of abuse and he ended up having to live on the streets.  Unfortunately, that led to a history of petty crime, but the father tells me in his affidavit - and I accept it - that there have been no offences or charges or court appearances in relation to any criminal issues since 2006.  The father has done everything he can to sort his life out so that he can be an appropriate role model for his son.  Unfortunately, though, because of the mother's behaviour and attitude in this case, that has been frustrated. 

10. The father has not been able to see his son and it is now necessary for him to re‑establish his relationship with him.  Certainly, given the reports that I have read of Ms L and the Children's Contact Service in 2006, there would seem to be no basis for suggesting that the father cannot successfully re‑establish his relationship with his child, and he should be given every opportunity to do that, despite the behaviour and attitude of the mother.  Indeed, as I commented at the previous hearing of this matter, although it is now dismissed, the mother's own amended response was not that there be no time spent between father and child, it was that there be supervised time through a Children's Contact Service. 

11. Although they were the orders that the mother sought, of course, as I have referred to, the subsequent history of this matter is that the mother has not complied with orders which provided for time to be spent supervised at a Children's Contact Service, and the mother has not explained her reasons for that.  She has chosen to ignore orders of this court and not attend hearings.

12. That said, in my view it is in the best interests of this child that he spend time with his father. The issue is how best to set that up and, as I have said, the father has taken a sensible approach in proposing a staged process, with the obvious commencement of the supervised sessions at a Children's Contact Service. I have no difficulty in finding that that staged approach is an approach which is in the best interests of this child and which should ultimately lead to a meaningful relationship occurring between this child and his father, which is a relevant and significant factor that I have to have regard to under s 60CC of the Family Law Act 1975. 

1. Turning to the orders that I propose to make.  They are as set out in the Outline of Case filed by the father, with one or two variations that I have already referred to.  I should perhaps just dwell on the order which provides that the parties have equal shared parental responsibility.  I note that the mother in her response sought sole parental responsibility, but of course, that response is not before me.  What is before me though is the history of this matter and there is no basis for me to do anything other than apply the presumption in this case that it is in the best interests of this child that the parties have equal shared parental responsibility.

2. Next I turn to the Application in a Case that is before me today, the application filed by the father on 11 August 2008.  I note of course that this application has not been served upon the mother.  The father applies for the application to be heard ex parte.  In my view that is appropriate, given in my view the deliberate action by the mother to avoid service and to avoid having anything to do with this matter.  It would be a pointless exercise to order the father to serve this application upon the mother and, indeed, this application itself is an attempt to find out the mother's address so that the order that I have just made can be served upon her.  Thus I have no difficulty in proceeding to hear this application ex parte.

3. The father first seeks an order pursuant to s 67N(2) of the Family Law Act 1975, directed to the Business Manager of Centrelink. That is a Commonwealth Information order. Separate to that, there is an order sought under s 67M(2), which is seeking a Location Order directed to the Minister of Education. I propose to make the usual orders in respect of both of those applications.

4. Separate to that, the father seeks orders, firstly, under s 67P(1)(d).  Indeed, the father seeks orders in respect of both the Commonwealth Information Order and the Location Order that leave be given, once the information is to hand, for the information to be provided to the father's solicitor and a process server engaged by the father's solicitor to effect service of the documents on the mother.  I have no difficulty in making those orders as well in terms of paragraphs 4 and 6 of the Application. 

I certify that the preceding 74 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 13 August 2008.

Associate