Harrow and Finch

[2007] FamCA 1721

FAMILY COURT OF AUSTRALIA

HARROW & FINCH [2007] FamCA 1721

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time and communicates – Orders

Family Law Act 1975 (Cth)

APPLICANT: Mr Harrow

RESPONDENT: Ms Finch

2^ND RESPONDENT : Mrs Allen

FILE NUMBER: MLF 1951 of 2006

DATE DELIVERED: 7 November 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 7 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J. Bult

SOLICITOR FOR THE APPLICANT: Lawsons McDonald Scott and Waters

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Mr Reid

SOLICITOR FOR THE INDEPENDENT

CHILDREN'S LAWYER:

 McCluskys

Orders

IT IS ORDERED

1. That the Applicant Father have sole parental responsibility for the children B born … July 1993 and R born … September 1997 (“the children”).

2. That the children live with the Applicant Father.

3. That the children spend time and communicate with the Respondent Mother as follows:

(a)      between the hours of 9am and 6pm each day during one week of each school holiday period at times agreed;

(b)       by telephone each Wednesday between 6.00pm and 6.30pm with the Respondent Mother to be responsible for initiating the telephone call to a mobile telephone provided by the Applicant Father for the children;

(c)       by telephone each Sunday between 10.00am and 10.30am with the Applicant Father to initiate the telephone call on behalf of the children to a telephone number nominated by the Respondent Mother;

(d)       at such other times as may be agreed between the Applicant Father and the Respondent Mother.

1. That either the maternal uncle, Mr C Allen, or the children’s half-brother, N, or another mutually agreed family member be in substantial attendance during the times that the children spend with the Respondent Mother pursuant to paragraph 3(a) of these Orders, such agreement to be in writing.

2. That the children be allowed to telephone the Applicant Father or any other paternal family member at any time during the times referred to in paragraph 3(a) of these Orders, with the Respondent Mother and the mutually agreed family member referred to in paragraph 4 of these orders to do all acts and things necessary to facilitate such telephone calls.

3. That the Respondent Mother be and is hereby restrained from drinking alcohol or using illicit drugs 24 hours before or during any time that she spends with the children.

4. That in the event that there is no mutually agreed family member able to be in substantial attendance or the Respondent Mother is affected by alcohol and/or illicit drugs then the time that the children spend with the Respondent Mother pursuant to paragraph 3(a) of these orders is suspended until such time as a mutually agreed family member is able to be in substantial attendance and/or the Respondent Mother is not affected by alcohol and/or illicit drugs.

5. That the appointment of the Independent Children’s Lawyer be discharged.

6. That otherwise all extant applications be dismissed and this matter be removed from the list of cases awaiting final determination.

7. 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.

8. That the Applicant Father cause a sealed copy of these Orders to be served on the Respondent Mother in accordance with paragraph 12 hereof.

9. That for the purposes of service pursuant to paragraph 11 hereof:

   (a)the documents for the Respondent Mother shall be posted by prepaid post to the address for the Respondent Mother as disclosed on the Notice of Ceasing to Act filed 16 August 2007;

   (b)the documents for the Respondent Maternal Grandmother shall also be posted by prepaid post to the address for the Respondent Mother as disclosed on the Notice of Ceasing to Act filed 16 August 2007 accompanied by a letter to the Respondent Mother requesting that she forthwith bring the documents to the attention of the Respondent Maternal Grandmother.

10. Liberty be reserved to the Respondent Mother to apply to vary or set aside these orders, any such application to be filed and served within 28 days of service in accordance with paragraph 12 hereof.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1951 of 2006

MR HARROW  

Applicant

And

MS FINCH  

Respondent

REASONS FOR JUDGMENT

1. These proceedings come before me in the duty list today on an application for final orders to be made on an undefended basis.  There are appearances on behalf of the father and the independent children's lawyer and on appearance by the mother. 

2. I am satisfied on the assurance given from the bar table by the solicitor for the father that paragraph 6 of the orders made on 6 September 2007 for substituted service of the documents has been complied with. 

3. However, I note, having taken a personal undertaking from that solicitor, that an affidavit of service in the appropriate form will be filed within 48 hours. On that basis and in the circumstances of this matter, I am prepared to proceed on an undefended basis. 

4. This last matter is raised by the fact that the mother has not involved herself in these proceedings for some considerable time; no longer has a lawyer; and is deemed, by virtue of the compliance with the order for substituted service, to have knowledge of today's hearing.  In any event, to further ensure her rights pursuant to natural justice, I will require that the orders be served on her in like manner to the earlier orders, and she will be given liberty to apply to vary or set them aside within a specified time.

5. The application concerns two children: B, born in July 1993, presently aged 14, and R, born in September 1997, presently aged 10.  The parties commenced a relationship in approximately 1991 and separated in about October 2002.  The children have lived in the primary care of the father since the separation; that is a period of just over five years.  They have spent time with the mother in circumstances referred to as "sporadic" since that time, mainly because of significant problems with the mother's mental health.  The mother has been admitted as an involuntary patient to several psychiatric hospitals over the years, in circumstances where it is not necessary for me to provide detail.

6. I have read the father's affidavit of evidence in chief sworn on 14 September this year and have also read the earlier affidavit of 17 August this year.  In addition to that, the mother has sworn and filed an affidavit, that being sworn on 13 July 2006 and filed on 19 July 2006.  I have also read the affidavit of the consulting psychologist, Ms E, which was prepared effectively by way of a family report.  That affidavit was sworn on 20 August 2007 and filed two days later. 

7. All of that material persuades me that, as I have said, since the parties' separation the father has been by far the primary parent of these children, with assistance and support, as is appropriate, from members of his close family, and that the mother has been neither involved nor interested in being involved in their lives, almost certainly because of her mental state. 

8. I must consider the various provisions of Part VII of the Family Law Act ("the act"). In light of the mother's health, her non‑involvement with the children and a display of what is apparently no interest in involvement, it is not in the children's best interests that I should make an order for shared parental responsibility. In my view, the facts which I have stated clearly call for a rebuttal of that presumption, and there will be an order for sole parental responsibility in favour of the father.

9. Accordingly, it is not necessary for me to consider either shared equal time or  significant time to be spent and communication to be had between the mother and the children; and in any event those facts of the mother, and in particular the mother's attitude, clearly suggest that that is inappropriate and against  the children’s interests.

10. I refer to the object and principles in section 60B of the act; and again, by virtue of her non‑involvement and her health, the mother does not enable me to cause her to be significantly involved in these children's care and upbringing. 

11. I accept the submission of the solicitor for the father, supported by the independent children's lawyer, that, on the question of communicating with and spending time with the children, the mother presents significant problems. I note the acceptance of the task of supervision of any time spent between the mother and the children by appropriate individuals, who have already been involved in those tasks.  In those circumstances I accept the orders which are proposed, being that the mother spend time and communicate with the children only during daytime and not overnight; and that certain specified people or other mutually‑agreed family members be in substantial attendance during those times as is appropriate, such agreement to be in writing. 

12. In my view, the father's proposal for circumstances in which the mother is to spend time with the children and communicate with them, including by telephone, is in their interests and I accept the making of those orders. 

13. Otherwise, these applications will be dismissed and removed from the list of cases awaiting hearing. I will, as I have already said, cause service to be effected by the same manner as in the previous order. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin 

Associate

Date: 25 November 2008