Hadfield and Harris

[2018] FamCA 438

FAMILY COURT OF AUSTRALIA

HADFIELD & HARRIS [2018] FamCA 438

FAMILY LAW – CHILDREN – Final parenting – unopposed – continuation of interim order – each parent to have parental responsibility

APPLICANT: Ms Hadfield

RESPONDENT: Mr Harris

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Mr M Weston

FILE NUMBER: MLC 8871 of 2008

DATE DELIVERED: 7 June 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 7 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms D Wiener
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Perry Weston

Orders

IT IS ORDERED THAT:

(1)Each party have responsibility for the children X born … 2002 (“X”) and Y born … 2004 (“Y”) (collectively “the children”).

(2)The children live with the father.

(3)The children spend time with the mother on each alternate weekend from 3.30 pm on Friday until 7.00 pm on Sunday during all school terms.

(4)The children spend time with the mother for the second half of the school holidays including the long summer holidays to commence at 3.30 pm on the day which is the mid-point of the holidays and the children be returned at 7.00 pm on the day prior to school resuming (unless arrangements for an earlier return are made).

(5)For the purposes of paragraphs 3 and 4, all collections that do not occur at school, and all returns by the mother, shall occur at the start of the father’s street.

(6)During school holidays including the long summer holidays, all term time of both parents is suspended but shall resume in the new school term as if it had not been suspended.

(7)A copy of these orders and reasons given this day shall be provided by the Court to the Department of Health and Human Services and by the independent children’s lawyer to the children’s school principal.

(8)If the child X obtains employment, the mother make such necessary alterations to these orders to give X the opportunity to participate in that employment.

IT IS DIRECTED:

(9)That my reasons for decision this day be transcribed.

(10)The email from my Associate to the parties dated Thursday 17 May 2018 be marked Exhibit “C1” and remain on the Court file.

IT IS FURTHER ORDERED THAT:

(11)All extant applications be and are hereby dismissed and this matter be removed from the docket of the Honourable Justice Bennett.

(12)I reserve liberty to the husband to apply to vary or discharge this Order or as he may be advised providing that any such application be filed within 14 days and be accompanied by an affidavit in which he explains his non-attendance at Court this day and sets out with specificity the final parenting orders he seeks in preference to the orders made today and the reasons why the orders he seeks are preferable to this Order.

(13)For the avoidance of doubt, I have marked the affidavit of the mother affirmed on 28 May 2018 as a document not served on the father.

(14)That pursuant to Sections 65DA(2) and 62B the particulars and 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

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 Hadfield & Harris 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 MELBOURNE

FILE NUMBER: VID 8871 of 2008

Ms Hadfield

Applicant

And

Mr Harris

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

EX-TEMPORE

1. These are some reasons for decision.  This matter comes before me as the first day of hearing.  The applicant mother appears in person.  The respondent father does not appear.  He was called at the door of the Court at approximately 9 am and there was no response to the call.  I dealt with another matter and the matter was called on at 9.45 am.  The father was then called at the door of the Court and there was no response to the call.  I asked the applicant mother if she had seen him in the building on her way to Court, and she said that she had not.

2. This matter was allocated to my docket in May 2018, and on 17 May 2018 an email was sent to the mother, the father and the independent children’s lawyer enclosing information regarding the first day of hearing.  That information or that correspondence nominated this day at 9 am at this Court house as the first day of hearing.  I mark as exhibit “C1” the email and the information and direct that it remain on the Court file.

EXHIBIT C1 - EMAIL OF 17 MAY 2018

1. I note the details of the hearing and the information were also sent by prepaid post to the parties at their addresses for service. 

RECORDED   :   NOT TRANSCRIBED

1. The address to which the correspondence was sent by prepaid post for the father was C Street, Suburb B, which the mother confirms is the father’s place of residence.  I am satisfied on the basis of the email which was sent to the father and the correspondence which was sent by prepaid post that the father has been accorded procedural fairness of today’s event.

RECORDED   :   NOT TRANSCRIBED

1. Since the notification of the listing for the first day of hearing, the mother has filed an affidavit affirmed on 28 May 2018.  It is a document of 15 pages in length, together with annexures.  I have perused if briefly, not read it in any detail.  The mother informs me that she has not served the document on the father.  Accordingly, I disregard the contents of the document for the purpose of these proceedings. It can stay on the Court file but is not in evidence before me.

2. These proceedings concern two children, X who is nearly 16, having been born in 2002, and Y who is 13 and a half, having been born in 2004.

3. To say that the proceedings concerning this family have been of longstanding is an understatement.  There have been two sets of final orders made in the matter and extensive and involvement by the Department of Health and Human Services as recently as last year.  On 11 September last year, Cronin J made interim orders at the request of the mother and the father.  At that point, the Department of Human Services appeared as amicus curiae and the children’s interests were represented by the independent children’s lawyer, Michael Weston of Perry Weston Lawyers.

4. On that day, Ms Weiner of counsel appeared on behalf of the independent children’s lawyer and she appears again today.  The Department of Health and Human Services have been excused from the proceedings and the mother and father appeared self-represented on 11 September 2017.  I have had the benefit of reading documents on the Court file, including assessments by previous social scientists and the relatively recent assessment by the Department of Health and Human Services dated 1 September 2017, which was before Cronin J.  It is a document of eight pages co-authored by a senior protection practitioner and a team manager.  As best as I can discern, there was no testing of that report when the matter was before his Honour in September 2017.  So I have regard to the contents of it, but also take into account that it is untested evidence.

5. The orders which were made by consent on 11 September 2017 provide that each party have parental responsibility for the children when in their respective care, that the children live with the father and the children spend time with the mother each alternate weekend and for half of the school holidays.

6. The point of changeover is to be the school attended by the children or either of them, and all returns by the mother of the children to the father will occur at the start of the father’s street, which, as I have mentioned, is C Street in Suburb B. 

7. The mother informs me from the bar table that the orders have worked reasonably well.  She does not see Y quite as much as the orders provide, but she is pleased to see him when she does.  She is seeing X regularly.

8. The mother seeks that the case be taken out of the Court system.  At the moment, the arrangements for the children are working well and she sees no reason to disrupt what harmony the family has been able to develop.  I cannot say that this family will not come back to court again, but, given the ages of the children and the fact that the mother is seeking that the proceedings cease because she is seeing the children regularly. I am persuaded that the proceedings ought to be concluded now on some basis.

9. Any parenting orders I make, including a continuation of the interim orders, must be orders in which I regard the interests of the children as the paramount consideration. 

10. The primary considerations which I take into account include the benefit to the children of having a relationship with both parents.  I am well satisfied that it is of benefit to the children to have a relationship with the mother, and, obviously, they are living with the father so have a relationship with him at the moment.

11. The other primary consideration and, in fact, the one that is to be accorded most weight is the need to protect the children from physical and psychological harm.  There is extensive evidence – some of it tested, some of it not tested – to the effect that the children’s emotional wellbeing has been substantially at risk, if not imperilled by high parental conflict.  However, it seems that at the moment, matters have settled somewhat, and hopefully they can continue in that vein.

12. The mother does not seek any orders over and above the continuation of the interim orders with one correction, which I have drawn to her attention, that on a final basis, the last eight words of the first order ought to be removed so that the order provides that each party have parental responsibility for the children.

13. The mother says that she has been able to work well with the proper officers of Suburb B High School, and, obviously, that should continue into the future.

14. It seems to me that as both children are seeing the mother regularly, although X more frequently than Y, that arrangement is likely to be in accordance with their views.  Certainly, the mother has indicated to me that as Y does not see her as regularly, she does not want to impose any further obligations on him.  So the mother demonstrates a flexibility of attitude in relation to taking into account Y’s views. 

15. I am not proposing that there be any significant change to the existing arrangements because I am continuing the interim orders.

16. I have, in reading the fairly extensive material in preparation for today, had an opportunity to consider the parenting capacity of each parent.  There is a large question mark and concern over the parenting capacity of each parent, but it seems to me so long as the children see their mother regularly and with some frequency, that the children will be able to benefit from the mother’s input to the extent that she is able to give that.

17. This is a court of private law.  I am not in a position where I could place the children in the care of a third party, and, on the current facts and situation as outlined by the mother, I would not do so.  Both parties are fairly challenged in relation to parental capacity, the most desirable outcome is that the children get to benefit from what each parent can legitimately and beneficially give them.  That appears to be the case at the moment.

18. I will make the orders sought by the mother, which are, essentially, a continuation of what is already in place.  However, as some safeguard for the father, I will provide him with liberty to reply to seek to discharge this order or as he may be advised.  It will be necessary at that stage that he explain why he was not at court this day, together with what orders he wants in substitution for the orders that I now make and why any orders he seeks are a better alternative for the children having regard to the best interest factors in s 60CC of the Family Law Act 1975.

19. Finally, I am comforted by the fact that the mother is in contact with and able to liaise with the school at which the children attend, and, similarly, I gather, any health institution with which the children might be involved.  That is something which should continue into the future.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 7 June 2018.

Associate: 

Date:  18 June 2018