Godfrey and Hampton and Anor

[2008] FamCA 820

FAMILY COURT OF AUSTRALIA

GODFREY & HAMPTON AND ANOR [2008] FamCA 820

FAMILY LAW – CHILDREN—Parental responsibility—Interim consent orders—Where Father did  had not attended court for 2 years—Father claimed sought adjournment by fax—Father sought reinstatement of Sunday nights—Passport renewal—Surname issues—Interim orders to remain—Sunday nights reinstated—Passport to be held by court

APPLICANT: Ms Godfrey

1st RESPONDENT: Mr Hampton

2nd RESPONDENT: Mr Godfrey

FILE NUMBER: SYF 6752 of 1998

DATE DELIVERED: 25 September 2008

PLACE DELIVERED: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 25 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson of Counsel appeared for the Applicant Mother

COUNSEL FOR THE 1ST RESPONDENT: Self-represented

COUNSEL FOR THE 2ND RESPONDENT: Self-represented

Orders

IT IS ORDERED THAT:

1. In the event a passport application form for the child born … May 1997, is not signed by the Mother and/or Father and lodged with the Department of Foreign Affairs within seven (7) days of today’s date, then a Registrar of this Honourable Court is authorised to sign such passport application in lieu of signature of either parent who has neglected to sign such passport application.

2. The child’s passport, when issued, is to be lodged with this Honourable Court for safekeeping.

3. The proceedings be adjourned to a date to be fixed before a Registrar of this Honourable Court for a telephone hearing for the making of further directions and for listing of a further date for hearing.

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The time the Father spends with the child to conclude on Monday morning instead of 6.00 pm Sunday night.

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT:

1. UPON THE UNDERTAKING of the Father that he shall not be intoxicated he shall have communication by telephone with the child every Tuesday and Thursday nights at a time to be agreed with the Mother as the case may be on any such occasion, and in the absence of agreement between 6.30 pm and 7.30 pm.

IT IS FURTHER ORDERED THAT:

1. Pursuant to s 62B and s 65DA(2), 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 “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: SYF 6752 of 1998

MS GODFREY

Applicant

And

MR HAMPTON

First Respondent

And

MR GODFREY
Second Respondent

REASONS FOR JUDGMENT

1. This matter was set down to proceed before me in Sydney on 10, 11 and 12 September 2008.  It is a matter that has been in the litigation system since 1998.  There was a hearing back in 2002, as I recall, before Coleman J when his Honour delivered detailed reasons.  Orders issued by Coleman J.

2. The situation is currently governed by orders made by Sexton FM.  As I understand the position, those orders were in fact, made by consent.  Those orders are quite detailed governing such issues as telephone contact and a detailed four week cycle as to the time the child is to spend with his father, his mother and with the maternal grandfather. 

3. On 10 September and 11 September the respondent father failed to attend.  His counsel appeared instructed by the solicitors seeking leave to withdraw.  That leave was granted.  I am satisfied my Court officer made strenuous attempts to contact the father to no avail. 

4. The father says that on 8 September he forwarded a letter to the case coordinator of the Family Court in the following terms:

   My name is [Mr Hampton].  The above matter is currently listed for hearing for the dates of 10 and 11 September 2008.  As of today I do not have legal representation in the matter and I seek an urgent adjournment for hearing.  I understand that I may not be able to get another date for hearing until February 2009.  This would be acceptable as it would allow for enough time to prepare for the matter.

   Further, my father, Mr [Hampton] Senior, is not currently in Australia.  My father has already given evidence in affidavit form and, as I understand it, he will need to be available for cross-examination.  [The maternal grandfather], the second respondent, has filed an affidavit in reply to my father's affidavit and we will be objecting to that document.  Accordingly, [the maternal grandfather] wishes to have my father be available.  Please accept my apologies for the lateness of this urgent request.

5. That facsimile, if it ever was sent, there is certainly no record of it ever being received by the Court.  There is no corroboration by way of proof of dispatch that the document was ever forwarded but, in any event, as I endeavoured to explain to Mr Hampton on today's date, simply writing a letter to a Court does not constitute a proper request to adjourn a matter.  He lives in Sydney.  He does not work at the current time.  There is no satisfactory explanation as to why he could not have attended or sent somebody else in his stead, his parents, somebody, to request an adjournment and to set out the reasons for the adjournment on 10 September. 

6. When he despatched, he says, the fax document on 8 September, he did not so much as afford the courtesy to the mother's legal representatives or to Mr Godfrey that such a request was being made.  I refuse to accept that somebody who has been in the litigation system for 10 years would not be aware of the necessity of advising the other parties of such a fundamental request as an adjournment of a hearing.

7. I am extremely cynical of the father's claim that he sent the fax document of 8  September.  I refrain from making a final finding on that aspect but it would be appropriate, in my view, for the father, within seven days, to go to his mother's fax machine and there would be a record on the fax machine of that fax having been sent to the number at the Family Court.  But, in any event, the position is the father should be in a position within seven days to give to the mother's solicitors proof that that fax was sent.

8. I turn to the fact that, for reasons I gave on 11 September, I only made interim orders.  I would have been delighted to have made final orders but the difficulty was that the orders being sought differed in two respects from the orders that had been sought in the application by the mother which was then before the Court.  A document was handed up which contained draft orders as said to have been received from the father's then solicitors.  I was informed that that document was an open offer.  The father, on today's date, says it was a “without prejudice” offer.  I do not know where the truth lies in relation to that aspect but as a safeguard I intend to pay no regard whatsoever to that particular document.

9. I adjourned the matter through to today's date.  There was an expectation, at least from the mother's solicitor's point of view, that the father would not attend on today's date.  He has not attended at Court for the last two years.  In the event he did not attend, he had been served with the amended application by letter of 12 September.  On today's date the father appears and he now wishes to argue some nine separate matters. They could be summarised as follows:

   (1)The issue as to whether an order for supervision is required.

   (2)The issue of the child's surname for use at school and in other circumstances.

   (3)The issue of overseas holidays.  The father wants permission to be able to take the child overseas.

   (4)Whether there should be an order for sole or joint parental responsibility.

   (5)Whether the father's time with the child on Thursday evenings in the third week should be reinstated.

   (6)Whether the father's time for Sunday nights two weekends a month should be reinstated.

   (7)The question of phone calls twice a week, I understand that area has been agreed upon.

   (8)An order whether the passport should be retained by the Court, I understand that has been agreed upon,

   (9)An issue as to whether a new passport should issue, and I understand, thankfully, that issue has been agreed upon. 

10. The father says he will sign the passport application and give it to the mother, she can sign it.  He will pay for it and lodge it and when the passport has been issued the new passport is to be lodged with the Court.  I do not know that it is the business of the Court to go holding citizens' passports, but if that is the only way around this impasse I am prepared to make an order to that effect.

11. As I endeavoured to explain to the father, today is an interim style of hearing.  It is a situation where he comes to Court and seeks many of these orders without any evidence to support the orders that he seeks.  Many of the matters were dealt with by consent on 23 August 2006 by Sexton FM.  For example, there were orders by Sexton FM, that was the date when he gave the grandfather the permission to travel overseas but, for example, there were orders made for the father's time to be supervised.  That was never challenged.  That order has been in place for two years.  The father did not attend on the date of trial.  Now he comes at an interim hearing and says, "Change it all."  Well, I have news for him.  I do not intend to change it.  So the supervision order stays.  The child is certainly of an age where he can be sensitively questioned and give his account as to whether the time is supervised.

12. I caution the father that his credibility will be seriously impacted if he does not comply with Court orders relating to supervision.  I also caution him that one of the most fundamental aspects a Court has regard to is a litigant's ability to comply with Court orders.  Now, there had been an order of supervision in place for two years.  That has never been challenged by appeal.  It was a consent order made and it is not an order that I am going to change on today's date.  The father had his chance to come to Court on 10 September.  He did not avail himself of that opportunity.  I am not at a circumscribed hearing, such as this, going to make such a fundamental change. 

13. I can proceed on the basis that Sexton FM made the orders that he did because they were consent orders and that they were put in place for good reason at that time.  If the father seeks to change them; turn up at the trial, give detailed reasons backed up by corroborative material as to why the supervision order should be lifted.

14. I turn to the issue of the child's surname.  On today's date the father says the child should in future have a hyphenated name comprising the mother's surname and his surname.  The situation is one where Coleman J has made observations back in 2002.  I agree with those observations.  I did not make an order on 11 September that the child's birth certificate should be altered or the child's passport should be altered.  The father says he is known at school as the child with two surnames.  That may be the case but at a hearing such as this on such a significant issue I have no intention of changing the order that I made.  Submissions can be made at some later point in time if the father wants to line up and have another hearing.

15. In relation to overseas holidays.  The father says, well he wants an order to be able to take the child out of the country.  It is not the sort of issue that is dealt with without evidence as to when he proposes to go, where he proposes to go, who will be accompanying him.  If I was assured that his mother was accompanying him at all times, it was for a reasonable period of time, did not impact on the child's schooling, did not impact on the time the maternal grandfather and the mother spent with the child, I do not see any problem with it but there is no such evidence before the Court.  The other side does not agree to it.  One has to question, if the father was travelling by himself, his capacity to care for the child in circumstances where he is unable to give an adequate explanation as to why he could not even turn up at Court on 10 September.  So I am not going to give the father permission on today's date.  I am not going to resolve the issue.  It can be litigated, unfortunately, at another date.

16. The question of sole or joint responsibility, that was an issue that was before the Court late in the piece.  There is a presumption in law of joint responsibility.  That is the current situation.  I do not propose to change that.  It is a similar argument to the argument that I have applied to the father, that I will not change it where the parties are not in agreement and the matter has only been recently raised.  It is a matter that may have to be litigated.  I can make the observation that where there is poor communication between the parents and where one parent is having the child for a significantly greater period of time, it is normally a case where the issue of parental responsibility should be given to that parent.

17. The view that I take is that the father's characterisation of parental responsibility relates to health, education and emergencies is somewhat simplistic having regard to the numerous decisions that have to be made about a child's upbringing.  Issues that might arise include religious upbringing, they could include the type of sport the child plays, will he play sport or will he not play sport and a host of other issues that I do not need to elaborate on, ranging from the length of hair and fashion right through to lifestyle. 

18. I made an order on 11 September altering Thursday nights.  As I said, I did that on the information that had been placed before me that the father did not object to that.  He now resiles from that position.  That is his right.  The view that I take is that the Thursday night was something that was disruptive of the child having to go on that one-off occasion, better to leave it at weekends.

19. In relation to the Sunday nights loss, somewhat reluctantly I will reinstate the Sunday nights.  I do that on the basis that there was no evidence before the Court from the school in relation to the child being tired.  It was related from the Bar table.  It was only on two occasions.  The matter of the child's uniform was an adverse comment in the school report.  I have difficulty accepting the child's uniform difficulties would arise when he is being sent from either the mother's household or the maternal grandfather's household but I refrain from making any final finding about that.  Perhaps a letter from the school would clarify as to when these incidents were observed.

20. As I have said, the issue of phone calls, the passport being held by the Court is not in issue.  I propose to put in place an order if the father is not as good as his word about renewing the child's passport forthwith.  Then, in those circumstances, a Registrar of the Court is empowered to sign the application so no further action is required by listing the matter back before me.  The order that the paternal grandfather is at liberty to take the child will stand.  He should not have to come back to Court time and time again to seek permission to take the child out of the country.  He has done so.  He has taken the child.  There is not a shadow of a doubt that he would come back and that he would be vigilant about the child's safety at all times.

21. I hear what the maternal grandfather and the mother say about this matter having to go back for a further hearing.  I would sincerely wish that the parties did not have to litigate further.  I appreciate the sole responsibility for that rests fairly and squarely on the father's head.  His conduct was an absolute disgrace that he can simply send off a letter, not let anybody else know, not attend, and then expect to be able to relitigate the matter because he has now decided to take part in the litigation process. 

22. If the mother wishes to press ahead with the changes that she has sought and foreshadowed I see, unfortunately, no other option but to adjourn this matter to a Registrar for a telephone hearing for the making of further directions in this matter and for listing of a further date for hearing some time in the new year.  For those reasons I will be adjourning the matter on today's date.  I will not interfere with the orders that I made on 11 September, other than by reinstating the Sunday nights. 

    RECORDED  :  NOT TRANSCRIBED

23. That is changed by agreement.  I thought I had mentioned that.  That will be changed, the phone.

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  25 September 2008