Harris and Harris

[2007] FamCA 1130

FAMILY COURT OF AUSTRALIA

HARRIS & HARRIS [2007] FamCA 1130

FAMILY LAW - SHARED PARENTING – Proceedings in Defended List - Husband failed to attend hearing notwithstanding being notified of the date - Recommendations made by Family Consultant undertaken by Independent Children’s Lawyer - Final Orders made in absence of husband

Family Law Act 1975 (Cth)

APPLICANT: Mrs Harris

RESPONDENT: Mr Harris

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 366 of 2006

DATE DELIVERED: 12 September 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 12 September 2007

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Swart

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Gorman & Hannan

Orders

1.That all previous parenting orders be discharged.

2.That the husband and the wife have and exercise equal parental responsibility for all long term issues concerning the care welfare and development of the children T born … April 1994 and P born … October 1997.

3.That the children live with the wife.

4.That the husband and the wife each have responsibility for the day to day care welfare and development of the children whilst the children are in their respective care.

5.That the children shall spend time and communicate with the father as follows:-

a)each alternate school term weekend from after school on Friday or 3.30pm if not a school day until Monday morning before the commencement of school or 9.00am if not a school day;

b)the husband shall be at liberty to telephone the children between 6.30pm and 7.00pm on Wednesdays and each alternate Sunday when they do not spend time with him, such telephone contact to be initiated by the husband and the wife to ensure that the children are available to receive the call;

c)for one half of each school term holidays at times to be agreed and failing agreement during the first half to commence at school break-up and conclude at 6.00pm on the half way through the holidays;

d)for one half of each Christmas long summer vacation commencing at 6.00pm on the middle day and concluding at 6.00pm on the last day;

e)at Christmas in 2007 from 4.00pm Christmas Eve until 4.00pm Christmas Day and each alternate year thereafter;

f)at Christmas in 2008 from 4.00pm Christmas Day until 4.00pm Boxing Day and each alternate year thereafter;

g)on the children's and the husband's birthday as follows:-

i)on a school attendance day from the cessation of school until 7.00pm;

ii)on a non-school attendance day from 10.00am until 2.00pm;

h)on Father's Day should the weekend fall at a time in which the wife has care of the children the wife's time shall be suspended and she shall have make-up time the following weekend;

i)such further and other time as may be agreed.

6.That should Mother's Day fall on a weekend in which the children will be in the care of the husband the husband's time shall be suspended and he shall have make-up time the following weekend.

7.That when the above orders refer to time being spent, commencing and concluding changeover is to occur at the end of the wife's Court.

8.That the parties their servants and/or agents are hereby restrained from denigrating the other party in the presence and or hearing of the children and are further restrained from discussing these Court proceedings with the children.

9.That the husband the wife be restrained from using any form of physical discipline with the children or permitting anyone else to do so.

10.That the husband and the wife be restrained from being affected by alcohol or illegal substances when the children are in their care and that they also be restrained from exposing the children to anyone affected by alcohol or illegal substances.

11.That the husband and wife establish and use a communication journal for the purposes of conveying information about the children's health and welfare.

12.That the Independent Children's Lawyer be discharged.

13.That all extant applications be otherwise dismissed and that the proceedings be removed from the active pending cases list.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 366 of 2006

MRS HARRIS  

Applicant

And

MR HARRIS  

Respondent

REASONS FOR JUDGMENT

1.This matter comes before me in the Standard Track List of defended cases.  It concerns a welfare dispute involving a child T, who was born in April 1994, and a child P, who was born in October 1997.  T 13 years of age and P is nearly 10 years of age.  The parents were married in November 1994 and following unhappy differences, separated in September 2005.  It appears that the children have lived with the wife. 

2.A court order was made on 17 August 2007 by Registrar Field, adjourning the proceedings for hearing on 7 September 2007, this day.  It was further ordered that the Independent Children's Lawyer write to the husband advising him of the hearing, providing him with a Minute of the Orders the Independent Children's Lawyer sought and further advising him that if he failed to attend or have any attendance by a lawyer on his behalf on the return date, the wife would be at liberty to seek final orders on an undefended basis.  I am satisfied that order has been complied with in its strict terms.

3.I have before me a copy letter written by the Independent Children's Lawyer to the husband enclosing a copy of the orders sought this day.  I have had the husband called this morning at 10.30 am.  He failed to respond to the call.  The wife appears in person and Ms Swart of counsel appears for the Independent Children's Lawyer.  I have had the advantage of reading the husband's Form 1A Response filed on 29 November 2006, and the wife's Amended Form 1 filed on 12 June 2007.  I have read the affidavit of the husband filed on 29 November 2006, and an earlier one of the wife filed on 29 June 2006.

4.Significantly, however, I have had the advantage of a very helpful report filed by the Independent Children's Lawyer on 23 July 2007.  It is consistent with the professional approach of Dr J in that it is quite detailed, ranging to some 35 pages.  There is an earlier report also of Dr J, filed on 25 August 2006. I have read the final report carefully.  It is very helpful, in the sense that both the husband and the wife were interviewed by Dr J, and with considerable information to hand, including his discussion with both children T and P together with observations made by him of both parents interacting with the children, that he sets out his recommendations at page 31 of the report.

5.Those recommendations have substantially underpinned the Minute of Proposed Orders that have been provided this day by Ms Swart, save as to one issue dealing with changeover.  The wife appears in court this day, and has informed me from the bar table that the husband is aware of the proceedings.  He simply informed her that he did not propose to attend and that he did not wish to have anything further to do with the court.  The wife also informed me that her care of the children is progressing satisfactorily as is her communication with the husband.

6.I have no hesitation in making the orders sought in the special and discreet circumstances before me.  In so doing I am greatly assisted, as I said, by the report of Dr J and the recommendations of the Independent Children's Lawyer.  I have marked the proposed orders Exhibit “A”, and make orders in terms of Exhibit “A”.  I direct the Independent Children's Lawyer to engross the orders.

7.The orders will be amended to include, by adding an order numbered 1, "That all previous parenting orders be discharged”.  Following a renumbering of the Exhibit “A”, the final order will be added as "13:  That all extant applications be otherwise dismissed and the proceedings be removed from the Active Pending Cases List”.  I have also directed that all subpoenaed documents be returned to the provider of those documents.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate 

Date:  24 September 2007