Gayle-Willis and Willis

[2010] FamCA 642

FAMILY COURT OF AUSTRALIA

GAYLE-WILLIS & WILLIS [2010] FamCA 642

FAMILY LAW – CHILDREN – Child related proceedings – Sole parental responsibility – With whom a child lives – With whom a child spends time and communicates – Restraint
FAMILY LAW – PROPERTY – section 106A order

Family Law Act 1975 (Cth)

APPLICANT: Ms Gayle-Willis

RESPONDENT: Mr Willis

FILE NUMBER: MLC 4682 of 2009

DATE DELIVERED: 26 February 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 26 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Williams

SOLICITOR FOR THE APPLICANT: Berry Family Law

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: n/a

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Boymal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

IT IS ORDERED THAT

1. All previous parenting orders pursuant to Part VII of the Family Law Act 1975 be discharged.

2. The wife have the sole parental responsibilty of making all decisions with respect to the child of the marriage M born … May 2003.

3. The child live with the wife.

4. The child spend time and communicate with the husband as follows:

   a.from 11:00am to 6:00pm on each alternate Saturday commencing 6 March 2010;

   b.by telephone between 6:00pm and 7:00pm on each Sunday and Wednesday, the wife to faciliate such calls and the husband to initiate them; and

   c.at such other times as may be agreed between the parties.

5. Subject to paragraph 6 hereof the husband be and is hereby restrained by himself, his servants and agents from bringing the child into contact with his partner Ms F.

6. Notwithstanding paragraph 5 hereof the husband be and is hereby authorised to bring the child into contact with the said Ms F upon the agreement of the wife and assisted by an appropriately professionaly trained person.

7. Pursuant to the provisions of section 106A of the said Act a Registrar of the Melbourne Registry of the Court be and is hereby appointed to excute all documents in the name of the husband to give full force and effect to paragraphs 1 and 2 of the order made on 7 December 2009.

8. As soon as practicable the wife cause a sealed copy of these orders to be served on the husband personally.

9. Liberty be reserved to the husband to apply to vary or set aside these orders upon application to be filed and served within 21 days of service in accordance with paragraph 8 hereof any such application to be supported by an affidavit or affidavits explaining the husband’s non-appearance in Court this day.

10. The husband pay the wife’s costs of and incidental to paragraph 7 hereof fixed in the sum of $1500.

11. General liberty be reserved to both parties to apply.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4682 of 2009

MS GAYLE-WILLIS

Applicant

And

MR WILLIS

Respondent

REASONS FOR JUDGMENT

1. The parties are in dispute primarily over issues relating to their child M born in April 2003, aged nearly 7 years, arising out of the breakdown of their relationship. In addition, they are in dispute with regard to enforcement of one small matter arising out of orders for alteration of property interests pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”).

2. The husband has not appeared today.  He was called at the beginning of this hearing and did not respond to the call.  He has previously failed to attend Court events and I have accordingly decided to proceed on an undefended basis. In order to sufficiently protect his rights, I will require a sealed copy of the order to be served on him and I will reserve liberty to him to apply to vary or set aside the orders in the usual way.

3. The parties married in April 2000, separated in August 2008 and have remained separate and apart since that time.

4. Since their separation the child has remained in the primary care of the wife and that is not challenged.  There will be an order that the child live with her.  The issues relate first to the question of parental responsibility, second to the times and conditions on which the child should spend time and communicate with his father and thirdly, with regard to the child being brought into contact with his father's new partner.

5. I deal first with the issue of shared parental responsibility. The Act provides a presumption that shared parental responsibility should be ordered unless it is demonstrated that it is contrary to the child's best interests. There are several quite significant factors suggesting that the presumption should be rebutted, the first of those is the issue of the father's attitude towards seeing the child. I have been greatly assisted by a written issues assessment prepared by Ms L, a family consultant of this Registry of the Court, which I accept in its entirety. It notes initially, having been prepared in August of last year, that at that time the child lived with his mother and had not spent time with his father since about February last year. That would appear to have changed in relatively recent times. The father seeks now to install what he refers to as a “normal situation”. However he does not seem willing to cooperate. He has not appeared here today and he did not appear in particular at one hearing at which the question of the introduction of the child to his partner was a specific issue.

6. Ms L wrote:

   [The father] is unhappy about the current application and was somewhat closed and defensive in his initial discussion with the writer.  [The father] would not attend the child and family meeting as he felt unable to take any further time off work.  It was agreed he would receive feedback via telephone but he was alerted to the fact that [the child] may be disappointed that he was not present and that the planned joint feedback session with [the mother] could consequently not proceed.  [The father] was made aware that this could limit the scope of the assessment and any opportunity for resolution around the current matter.  Despite the above [the father] remained unwilling to attend the meeting.

7. Ms L referred to the father as being:

   … hopeful and confident that once property matters had been settled the current conflict will abate and there will be a natural resolution to the dispute.  [The father] reports his belief that [the mother’s] feelings towards both himself and Ms [F] [his partner] are impacting on her ability to support his relationship with [the child] and that she is possibly having a negative influence on [the child] around this issue.  He therefore does not trust that [the child’s] reported concerns regarding himself and Ms [F] are his, believing rather that they are the concerns of [the mother].  [The father] states his desire to have a normal relationship with his son and to be a part of his life.  He is, however, unwilling to accept [the mother’s] proposals around supervision of his time with [the child] even if this means his time with [the child] does not resume.  [The father] states he believes that [the child] will be introduced to Ms [F] when he is ready for such and that he is not attempting to force this relationship and he believes this should allay any concerns [the mother] has regarding him spending time with [the child].

8. From my point of view, the wife is entitled to consider the question of the introduction of the child to Ms F as an issue which is relevant to the child’s best interests.  My reading of the material suggests that the wife takes a positive attitude to these matters and had the husband appeared today with a similarly positive attitude, in my view, that issue could have probably been resolved quite readily.

9. Of particular concern with respect to the husband's attitude is the following quote from the issues assessment:

   [The father] understands that [the child] is actively seeking to resume spending time with him, however he is entirely unwilling to alter his position in order to recommence seeing his son.  His stance is such that should he and [the mother] be unable to reach agreement at this time he will not pursue the matter further.  He understands that this may result in him not spending any time with [the child] but is of the opinion that "time heals" and that he will therefore have the opportunity for a relationship with [the child] in the future if not now.  It would appear that [the father’s] commitment to an ongoing and consistent presence in [the child’s] life is variable and he will need to increase his understanding of the significant impact the separation has had on [the child] and the potential long-term effects on [the child’s] emotional wellbeing from the largely unnecessary loss of the relationship with his father.  [The child’s] counsellor may be willing to involve [the father] by providing him with information regarding [the child’s] development and emotional needs, particularly in respect to his attachment relationships.

10. Under the heading Future Directions, Ms L commented as follows:

    It would be developmentally appropriate and emotionally beneficial for [the child] to begin spending time with his father.  He has grieved his father's absence and is actively seeking out this relationship.  As a priority the parents will need to put aside their conflict in order to meet [the child’s] needs for an ongoing relationship with his father.  If the matter proceeds observations of [the child’s] relationship with his father may be of assistance to the court in determining any future parenting arrangements.

11. In my view, those quotes from the report of the family consultant are illustrative of a less than satisfactory attitude towards parenting on the husband's part.  I have no doubt that these issues are capable of resolution with goodwill on both sides.  While there appears to be a residual distrust on both sides of the relationship with the parents I gauge the attitude of the wife as demonstrated by both the documents and the report of Ms L to be sympathetic to a resolution.  Regrettably, the same cannot be said of the husband.

12. In my view, the attitude of the husband to the role of parenting is contrary to the best interests of his son and in all the circumstances it is appropriate that the presumption with regard to shared parental responsibility be rebutted.  I will order accordingly.

13. Also with regard to the issue of the introduction of the child to his partner, I have decided that it is appropriate to enjoin the husband from bringing the child into contact with Ms F provided, however, that that may be done in the future with the assistance of an appropriate professionally trained person.

14. With regard to ongoing contact and communication between the child and his father the wife proposes through counsel that the child spend time and communicate with his father from 11 am to 6 pm on each alternative Saturday with the wife to deliver the child to his father at the commencement and the husband to return him at the conclusion.  In addition, it is proposed that there be telephone contact between 6 pm and 7 pm on Sundays and Wednesdays of each week to be facilitated by the wife and initiated by the husband. 

15. In my view, those suggestions which are supported by the Independent Children's Lawyer, are in the child’s best interests and I will order accordingly.

16. The outstanding matter in the area of alteration of property interests is the evidence of the wife which persuades me that the husband has failed to sign documentation to give effect to a discharge of mortgage to enable the full execution of the property orders made earlier. I am satisfied that such failure sufficiently raises the power contained in section 106A of the Act and I will order accordingly.

17. Finally, there is an issue of costs. Counsel for the wife submits that irrespective of today's hearing the preparation of the matter in the property area in which I have just made findings has incurred costs. The husband would appear to be in default, which is the basis of my decision, and in that light but particularly by virtue of the provisions of section 117(2)A of the Act with regard to the husband having been totally unsuccessful and these being enforcement proceedings it is appropriate that he pay the wife's costs. I will fix those costs in the sum of $1500.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate:

Date:  27 July 2010