Hepburn and McIver

[2018] FCCA 132

FEDERAL CIRCUIT COURT OF AUSTRALIA

HEPBURN & McIVER [2018] FCCA 132

Catchwords:
FAMILY LAW – Ruling on form of final orders.

Applicant: MS HEPBURN

Respondent: MR MCIVER

File Number: MLC 3460 of 2017

Judgment of: Judge Burchardt

Hearing dates: 5 & 6 October 2017

Date of Last Submission: 22 December 2017

Delivered at: Melbourne

Delivered on: 23 January 2018

REPRESENTATION

Counsel for the Applicant: Ms Braun

Solicitors for the Applicant: Lampe Family Lawyers

Counsel for the Respondent: Mr McIver, In Person

Counsel for the Independent Children’s Lawyer: Ms Bowman

Solicitors for the Independent Children’s Lawyer: Joliman Lawyers

ORDERS

1. All previous parenting orders be discharged.

2. The mother have sole parental responsibility for the children [X] born (omitted) 2010 and [Y] born (omitted) 2013.

3. The children live with the mother.

4. The Father spend time with the children as follows:-

   (a)From 6pm Friday to 4.00pm Sunday each alternate weekend.

   (b)From 12.00pm 24 December to 12.00pm 26 December in 2018 and each alternate year thereafter.

   (c)For one week of the long summer school holidays (in addition to each alternate weekend as provided for in Order 4(a)) at times agreed and failing agreement, from 10.00am 2 January to 4.00pm 9 January.

   (d)On Father’s Day weekend from 6pm Friday to 4.00pm Sunday.

   (e)At such further and other times as may be agreed.

5. The Father’s time pursuant to Orders 4 herein be wholly supervised by the paternal grandparents.

6. Changeover shall take place at the paternal grandmother’s home, with the mother to transfer the children to and from the home.

7. The Father communicates with the children each Tuesday and alternate Sundays between 6.00pm and 6.30pm with the Father to instigate such call.

8. Each party shall:

   (a)Keep the other party advised at all times of their current residential address and telephone numbers including mobile and notify the other party within 48 hours of any change;

   (b)Advise the other party immediately in the event that the children suffer any serious illness or injury;

   (c)Authorise any medical practitioner or health professional upon which the children may attend from time to time, to communicate with the other party in respect to the children’s medical condition and/or facilitate all schools at which the children may attend, from time to time, to:

   (d)Provide the other party at the expense of the other party copies of all school reports, notices and photograph applications in relation to the children;

   (e)Communicate with the other party either by telephone, in writing or by personal attendance, in respect to the children’s progress.

9. In the event the children or either of them attends upon a medical practitioner, the party who has care of the children at the time is to forthwith provide details of the practitioner, treatment and prognosis to the other parent.

10. The Father be at liberty to attend all school functions that is normal for parents to attend including but not limited to sports day, working bees, parent teacher interviews and Father’s Day functions.

11. The Father be at liberty to attend all sporting events and extracurricular activities that the children participate in.

12. The Mother and the Father be at liberty to provide a copy of the parenting Orders to any one or more of the following:

    (a)Any medical practitioner and/or allied health professional attending upon the children;

    (b)The Principal or delegate of the Principal of the school attended from time to time by the children

13. Each of the parties by themselves and/or their agents be and are hereby restrained by injunction from:

    (a)Harassing or assaulting the other party;

    (b)Denigrating, rebuking or belittling the other party to or in the presence or the hearing of children, and from allowing the children to remain in the presence of any other party who may be doing so;

    (c)Discussing these proceedings and or parenting issues, to, with or in the presence or hearing of the said children and from permitting any other person to do so;

    (d)Physically disciplining the children or allowing anyone else to physically discipline the children.

    (e)Exposing the children to conflict or disagreements between the Mother and the Father or between any other person in the household.

    (f)Exposing the children to any one adversely affected by illicit drugs and/or alcohol.

14. Pursuant to s.65DA 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.   

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 3460 of 2017

MS HEPBURN

Applicant

And

MR MCIVER

Respondent

REASONS FOR JUDGMENT

1. This matter has had a somewhat torturous history.  Following a hearing on 5 and 6 October 2017, I reserved judgment.  It had been ordered that the father undergo a hair follicle test in order to determine conclusively whether or not he was still, as the mother alleged and he denied, a regular user of illicit drugs.  Nothing was heard from the parties for some time and the matter was listed on 23 November 2017, on which date the respondent father failed to appear.  The matter was adjourned to 28 November 2017, but was in fact ultimately heard on 27 November 2017, on which occasion the father appeared in person via telephone.  I adjourned the matter to 7 December for further hearing.  On 7 December 2017, the father again had failed to appear and the matter effectively proceeded undefended. 

2. I had, in fact, prepared a draft judgment initially refusing the mother’s application to relocate.  As the matter proceeded undefended, I revised the judgment to permit a relocation, although I am informed that through proofreading errors it is apparent some elements of the earlier reasoning are still discernible in the judgment as published.  Nonetheless, as I explained to counsel for the mother, these are mere errors in preparation.  The Court is firmly of the view for the reasons given that relocation is appropriate. 

3. I caused the matter to be further listed on 7 December 2017 in view of the failure of the father to appear, as to whether or not the orders that the mother had recently proposed should still be met.  I gave the parties seven days to provide written submissions. 

The Submissions of the Mother

1. The mother has given further evidence on 7 December 2017 that the respondent father was extremely erratic in his attendance when spending time with the children.  The paternal grandparents, who have now a good relationship with the mother, had barred the father from their house unless it is court ordered.  The mother gave evidence (necessarily hearsay) that the father during such time as he was with the children was inattentive. 

2. The mother gave evidence that in her conversations with the father on the phone, he was abusive and impossible to deal with and appears to be drug-affected.  Although the father had asserted to the Court that he had undertaken a hair follicle test, the Independent Children's Lawyer confirmed that this was not the case. 

3. It was submitted that the mother should have sole parental responsibility, that the children live with her and spend supervised time with the father as agreed between the mother, the father and the paternal grandparents as supervisors at the grandparents’ home. 

The Orders Proposed by the Independent Children's Lawyer

1. The Independent Children's Lawyer did not agree with the submissions proffered by the mother.  The submissions noted the failure of the father to take a hair follicle test.  The submissions noted at paragraph 6 that while there is a benefit to the children having and maintaining a meaningful relationship with the father, for reasons set out in paragraph 6 of the submissions, the children would be at an unacceptable risk of harm if they were to spend unsupervised time with the father. 

2. The submissions noted the incapacity of the parents to cooperatively parent.  The submissions noted at paragraph 8: 

   However, given the father has failed to appear at court on several occasions which could be suggestive that he: 

   (a)is not able to prioritise his relationship with the children; 

   (b)shows a diminished ability or capacity to participate in making decisions about major long-term issues in relation to the children. 

   From the mother’s evidence, it appears that, since Judgment was reserved, the parental obligations to maintain the children have been carried out solely by the mother.  Hence, the best interests of the children would be best served by the mother having sole parental responsibility for all children. 

3. The submissions went on at paragraph 9 to say:

   Whilst the mother has proposed in the written submissions filed on her behalf that the children’s time with the father should be at times agreed with the paternal grandparents to supervise, the Independent Children's Lawyer opines that it is likely that neither parent will be able to ‘agree’ to time spent arrangements, especially given the mother’s distinct lack of willingness to support the children’s relationship with their father (as per the family report prepared by Ms E).  It is therefore submitted that the father continues to spend each alternate weekend with the children, supervised by the paternal grandparents.  This will also allow the children to maintain a relationship with the paternal grandparents, whom they have a close relationship with. 

4. The Independent Children's Lawyer went on to provide a schedule of proposed orders consistent with that latter position. 

Consideration

1. This case has been rendered extremely difficult by the father’s failure to undergo the hair follicle test and to participate meaningfully in the proceeding following reservation of the initial judgment.  The Court has been left with fleeting, but disturbing, evidence of the father’s behaviour since that time.  Nonetheless, while there is something to be said for the position contended for by the mother, the reality is that the children do have a relationship with their father and it is desirable to try and continue it.  They also have a good relationship with the parental grandparents which self-evidently is desirable to be continued.  The Court is left in an unsatisfactory evidentiary wasteland by the father’s actions, but in the end the submissions of the Independent Children's Lawyer are, I find, persuasive.  Albeit by perhaps a fine balance, the children’s best interests will be met by regularly seeing their father and, even if not, they will see the paternal grandparents.  There will be orders as proposed by the Independent Children's Lawyer. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 23 January 2018