Hennessy and Hennessy

[2019] FCCA 1176

FEDERAL CIRCUIT COURT OF AUSTRALIA

HENNESSY & HENNESSY [2019] FCCA 1176

Catchwords:
FAMILY LAW – Undefended parenting hearing.

Applicant: MS HENNESSY

Respondent: M HENNESSY

File Number: DGC 2299 of 2016

Judgment of: Judge Harland

Hearing date: 11 April 2019

Date of Last Submission: 11 April 2019

Delivered at: Melbourne

Delivered on: 11 April 2019

REPRESENTATION

No appearance by the Applicant

Solicitors for the Respondent: Ms Hugh of Dandenong Family Lawyers

ORDERS

1. That [V] born … 2013, [W] born … 2013, [X] born … 2009, [Y] born … 2012 and [Z] born … 2004 (“the children”) live with the father.

2. The father have sole parental responsibility for the children.

3. The mother is to spend time with the children as agreed upon in writing between the parties.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 2299 of 2016

MS HENNESSY

Applicant

And

MR HENNESSY

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a matter that was commenced by the mother on 12 March 2017. Despite this, the mother has not fully engaged with the proceedings, and the only affidavit that she filed was on 10 May 2017.

3. The father seeks that he have sole parental responsibility for the four children, that the children live with him and spend time with the mother as agreed. The father identified several risk issues in the first affidavit that he filed on 23 June 2017, and there was also a history of department involvement. One of the issues is the mother’s drug and alcohol use.

4. At the first return date, both parties were represented and interim orders were made for the parties to attend a s.11F conference, for the mother to provide random drug screens and for her to spend time at a play centre with the children for two hours, or a few hours a fortnight. The parties were also to enrol with a children’s contact centre.

5. The department provided two responses to s.67Z notices. The s.11F report dated 30 October 2017 identified the issues in dispute relating to allegations of family violence, substance misuse and mental health issues, as well as historical child abuse and neglect with DHHS intervention. The mother has a lengthy history of heroin addiction and has also taken methamphetamine. The father does not have any issues with substance and alcohol misuse. The mother has also had mental health issues. The father alleged that the children are at risk of physical harm with their mother, particularly [Z], who had previously been physically assaulted by the mother. [Z] is the half-sibling of the four children of this relationship.

6. The family consultant recommended that there be a period of supervised time and that the mother provide random drug screens, engage in drug and alcohol counselling and that the parties attend a post-separation parenting course.

7. The matter was next before me on 16 November 2017, when the mother had been unable to be contacted. It then came before me again on 18 May 2018, and orders were made for the mother to continue to have supervised time at Family Life, Suburb A, for another three months, and then to start to have unsupervised time at a play centre for three hours.

8. It was before me again on 12 November 2018, and again there was an issue with respect to the mother’s inconsistencies in terms of spending time. Unsupervised time had not begun. I made orders for the father to have sole parental responsibility and for the mother to spend time with the children as agreed between the parties. On that occasion I granted leave to the mother’s lawyer to withdraw from the proceedings, as again, the mother had been unable to be contacted.

9. The matter last came before me on 30 January 2019. The mother attended in person. The parties agreed to orders which provided for the mother to spend limited time at a play centre, and the mother was directed to file an affidavit within 21 days. I made it very clear to the mother on that occasion that she was being given one more chance, and that if she did not file material in accordance with the orders, that the matter may be finalised on the next occasion.

10. The father has filed a brief updating affidavit. He says that the mother has been attending at the play centre each fortnight without incident, and that the children enjoy their visits and are also excited about the gifts that she brings them. He says that the mother has also been making phone calls, but there has been some resistance from two of the children with respect to those calls.

11. The father’s concern is that as the mother has not filed any updating material, he simply does not know what her situation is. He does not know where she is living and does not know if she has been engaging in drug and alcohol screening. Despite her history of drug use and the concerns expressed, as well as the orders in place, she has only provided one drug screen, on 27 July 2017. The father seeks that these proceedings be finalised, and he proposes in his affidavit to continue to make the children available for the mother to spend time at the play centre.

12. In the circumstances, I am satisfied that the mother is on notice of the proceedings today and is also on notice that if she did not attend and did not comply with the orders, that the matter would be finalised today. I am satisfied that it is in the children’s best interests to make final orders for the father to have sole parental responsibility for the children, for the children to live with him and to spend time with the mother as agreed in writing.

13. I do not think there is any benefit in making specific orders for the mother to spend time, given the history of inconsistency. There are no issues of concern with respect to the father’s ability to care for the children and provide for them, and he has shown that he does facilitate the relationship between the mother and the children when it is safe to do so. For these reasons, I will make those orders.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 6 May 2019