Garde and Raddison

FAMILY COURT OF AUSTRALIA

GARDE & RADDISON

[2010] FamCA 101

FAMILY LAW – CHILDREN – With whom a child spends time – Father to spend no time with the child

APPLICANT:

Mr Garde

RESPONDENT:

Ms Raddison

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

6049

2008

DATE DELIVERED:

5 February 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Dessau J

HEARING DATE:

5 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Mulvany

SOLICITOR FOR THE APPLICANT:

TJ Mulvany & Co

COUNSEL FOR THE RESPONDENT:

Mr Sweeney

SOLICITOR FOR THE RESPONDENT:

Richard Calley

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Marchett

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

David Stagg Tonkin & CO

Orders

BY CONSENT IT IS ORDERED

That the wife have sole parental responsibility for any decisions concerning the long term care, welfare and development of the child J born … February 2007.
That the said child live with the wife.

2A. That the husband shall not spend any time with the child.

NOT BY CONSENT

That no later than 30 days after the said child's birthday in 2010 and within 30 days of the said child's birthday every second year thereafter, the wife cause to provide to the husband a current photograph of the said child in size of not less than 3 inches square.
That for the purposes of Order 3 herein the husband provide to the wife care of her nominated agent details of his nominated mailing address and any changes which may arise from time to time.
That the wife be permitted to change the said child's name, J …, to such other name as she deems appropriate.
That the wife be at liberty to register the change of the said child's name pursuant to Order 5 herein with the Registrar of Births Deaths & Marriages and any requirement for the consent of the husband to the said name change be dispensed with.

UNOPPOSED

The Wife be at liberty to make application for a passport for the said child and any necessary consent ordinarily required of the Husband be and is hereby dispensed with.
That the Registrar of the Family Court be empowered pursuant to Section 106A of the Family Law Act 1975 to sign any instrument or documents on behalf of the husband necessary to give effect to any of the Orders contained herein.
That the wife be permitted to travel interstate and overseas with the said child at any time and there be no requirement that she provide any notification or details to the husband in relation to any travel arrangements involving the said child.
That the Respondent paternal grandmother be granted leave to withdraw her Application filed 26 February 2009 and there be no orders for costs in relation to her doing so.
That all extant applications be dismissed and this case removed from the Pending Cases List and the appointment of the Independent Children's Lawyer is hereby discharged.
Pursuant to s.65DA(2) and s.62B, 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 the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That the Reasons for Judgment given this day shall be transcribed and made available to the parties.

AND THE COURT NOTES:

NOT BY CONSENT

A.In the event that the said child expresses a wish to communicate and/or spend time with the husband she will do all things necessary to access independent professional assistance for the said child from an appropriately qualified social scientist and wherever possible implement the recommendations of the social scientist.

B. The father does not oppose the above Orders on the basis that:

(a)he makes no admissions and in fact denies that the Orders are justified; and
(b)he has discontinued his application to spend time with the said child in circumstances where he considers that his actions foster the best interests of the said child.

C.That for the purpose of Order 3 herein, the wife's nominated agent is care of Richard Calley Family Lawyers.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6049 of 2008

MR GARDE

Applicant

And

MS RADDISON

Respondent

REASONS FOR JUDGMENT

J is just a matter of days off turning three. His father has not appeared here today, but is legally represented, and his legal representative is in court.
The mother is present but is in the secure courtroom. She is legally represented. There is also an Independent Children’s Lawyer who has counsel here.
This case has an extreme history of violence and threats on the father’s part. Although he makes various denials, there are some particularly violent parts of the history, including a conviction for murder on his part, that cannot be contested in any way.
It is clear from the material that the mother is genuinely traumatised, and as it was put by her counsel, phobic, when it comes to the father’s threats of violence towards her and towards little J.
The father had Mr Mulvaney, his solicitor, write an open letter to the other parties recently, on 20 January 2010, conceding that with a heavy heart he would no longer pursue spending time with the child, and making it clear, or at least expressing an understanding of the need for J’s mother to be able to be psychologically strong and to get on with parenting the child.
It means that a number of issues are put to me today as either agreed or unopposed, but Mr Mulvaney has brought to my attention a couple of issues that, on the strength of his instructions, are actually opposed today, and they relate to the following:
The first issue is as to the production of a photograph of the child by the mother to the father. The mother agrees that every three years she will present the father with a photograph of the child. The father seeks a photograph every year.
Counsel for the mother describes the onus that it places on the mother, in her distressed or phobic state, to be having that sort of resurrection of feelings in dealing with the father, even indirectly, on a yearly basis. The ICL says that probably somewhere between the two figures is a reasonable time, and I agree. I am sympathetic to the need to protect the mother. Annual contact with the father, even indirectly, is likely to trigger in her all sorts of responses that could impair her parenting. However, if photos are presented only every three years, it defeats the purpose in terms of the father having some inkling as to his son’s developmental progress. I propose making it every two years.
In terms of school reports, the father seeks annual school reports with the identification of the school obliterated, so that the mother need not have any concerns about that. The mother’s response is quite simply that she could not rest easy if there is the disclosure of school reports in any way, because of her fear that it could still lead to J’s identification.
The ICL’s position is that as it could place undue stress on the mother, and given that the child is in any event a number of years off school, the ICL does not support the disclosure of school reports to the father. In the unusual circumstances of this case, I agree that the mother’s wellbeing is so genuinely threatened by what has been an horrendous history of which she is aware, that I will not order that school reports be handed over.
The next issue relates to little J’s surname. His father’s name is Garde. J is currently registered as J Garde. His father, understandably, wants his name retained. The mother wants the capacity to change it. She wants that on the basis that she wants to protect his identity. She is concerned that, for example, if the names are, for example, “Googled”, that the father’s history of murder and so on would be revealed to the child. Further, it is submitted that the child will have no contact with the father; he is not conscious of or attached to his surname in any conscious sense at this stage, and so it would be appropriate for her to make whatever change she seeks. The ICL agrees on that basis.
I accept that it is appropriate in these unusual circumstances for the mother to have the peace of mind that J will be raised without being able to be identified by the father or located by the father, and without unwittingly coming across what is an ugly and frightening history and, given that he does not have an attachment yet in any strong sense to the surname, and will be raised without seeing his father, she should be able to change his name.
The next issue was that the father wants, at the very least, a notation that if the child expresses a wish to see or know him, that the mother will take the child for counselling. He is not seeking that if the child expresses a wish to see or know him, that the mother must make contact with him. That is an order that I would not have been prepared to make, because this little boy is unlikely to be in a position for very many years to know what is in his own best interests when it comes to a natural curiosity about his father.
The mother’s position is that she does not need to be told in any way and does not need any prescription as to how best to handle J’s best interests, because she has at all times and will continue to act in his best interests. The ICL supports the notation.
I am satisfied that it is an appropriate notation. It does not place an undue onus on the mother. It is likely to be the course that, as a caring and good mother, she would adopt in any event. There should be a notation simply to the effect that if the child is seeking to know his father, that the mother will arrange some appropriate and supportive counselling for him.
There was a small issue as to whether the father should be given liberty to apply in relation to these orders, given that he has not appeared today. I am satisfied that it is not appropriate. He has appeared through his legal representative but he has chosen otherwise not to attend. On balance it would be unfair in these circumstances for him to have that benefit when it is likely to have an very significant impact on the mother’s mental health, and therefore on J, if she is not given the peace of mind that the proceedings are now final.
Another very small issue that arose at the end of the submissions was in relation to notations (b), (c) and (d) of the orders proposed.
As for notation (b), the father is seeking there to have it noted that he makes no admissions about any of the allegations made against him, and that he has discontinued his application to spend time with J because he thinks that is in the best interests of the child.
Mr Sweeney, for the mother, has pointed to what he says is the inevitability of the orders being made against the father spending time with the child. I cannot comment on that because I have not heard the case. It does appear to be a strong case against the father seeing the child, but I have not heard the evidence tested, and am not called upon to make any decision about that. I see no reason to omit notation (b). It simply reflects the reality of the father’s position and in no way undermines the mother’s assertions.
As for notations (c) and (d), I did not hear further discussion about that. There is – I can tell from the body language at the bar table, seeing that is not recorded on transcript –no real contention about them, so they will remain.
All that leaves is to get these orders into the proper condition, and that is probably quite simple because the issue about the photograph in paragraph 3 where it says “every third year thereafter” I will just make that “ever second year thereafter”.