Home & Home

[2009] FamCA 345

FAMILY COURT OF AUSTRALIA

HOME & HOME [2009] FamCA 345

FAMILY LAW – CHILDREN – Parental Responsibility – With whom a child lives – With whom a child spends time – Best Interests of the Child

Family Law Act 1975 (Cth)

APPLICANT: Mr Home

RESPONDENT: Ms Home

FILE NUMBER: BRF 2057 of 2004

DATE DELIVERED: 5 May 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Justice Murphy

HEARING DATE: 5 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Matthews

SOLICITOR FOR THE APPLICANT: Berck and Associates

SOLICITOR FOR THE RESPONDENT: McDonald Brown Solicitors

INDEPENDENT CHILDREN’S LAWYER: Carter Farquar Lawyers

Orders in Chambers

UPON referral to a Judge by a Registrar of the Family Court of Australia, the father and Independent Children’s Lawyer agreeing as to the Orders sought and the mother taking no further part in proceedings for parenting orders, IT IS THIS DAY ORDERED in chambers as follows:

1. That the children R born … July 1997, C born … October 1999 and L born … April 2001 (“the children”) live with the father.

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

3. That the children spend time with the mother at all times as may be agreed between the parents but on the condition that such time be supervised by an independent person agreed between the mother and the father.

4. That each parent keep the other informed of their residential address and contact landline numbers and provide notification in writing of any change of those contact details within 48 hours of such change.

5. That each parent provide all necessary written authorities as may be required to permit provision to the other of any information from any school the children may attend from time to time and any medical or other health professional who treats the children from time to time, about the children’s health and educational progress respectively.

6. That, for the purpose of paragraph 5 herein that each parent forthwith advise the other parent of the names and contact details of all health or medical professionals who may treat the children and the name an contact details of the schools the children attend at any time. Such contact details are to be provided within 7 days of treatment or change of school as the case may be.

7. That the Independent Children’s Lawyer be discharged on a date seven (7) days from the making of these orders.

NOTATION

It is noted that the mother last spent time with the children in May 2008 and despite orders and encouragement by the father and the Independent Children’s Lawyer, the mother has not sought to spend time with the children.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 2057 of 2004

MS HOME

Applicant

And

MR HOME

Respondent

REASONS FOR JUDGMENT

1. Contested proceedings for settlement of property between the parties to the proceedings before me are due to be heard by Justice O’Reilly in June of this year.

2. This matter comes before me upon referral from a Registrar by reason of my having the management of proceedings relating to the parties three children (aged 11, 8 and 7) in the Magellan list of cases.

3. The listing with that designation arises because of allegations of severe domestic violence contained in a Notice of Abuse filed by the father.

4. As a result of the matter being designated as appropriate to be included in the Magellan list, the matter first came before me, as this Registry’s Magellan Judge, on 12 August 2008. The property component of the case remains in Justice O’Reilly’s docket where it proceeds towards the hearing earlier mentioned.

5. On 12 August 2008 I made comprehensive Directions with respect to the filing of material for an interim hearing, including the filing of a Response by the mother. The matter was listed before a Registrar on 25 November 2008.

6. The mother filed a Response in accordance with the Directions earlier made, and an interim hearing was conducted by Justice Bell on 10 October 2008. His Honour ordered that the father enrol the children at a New South Wales school.

7. The mother’s response sought Orders that the children live with her. His Honour did not make that Order.

8. On 30 October 2008 an Affidavit was filed by Dr M, a forensic psychiatrist who provided a report upon instruction from Mr Carter, the Independent Children’s Lawyer.

9. Justice Bell had ordered that time between the children and the mother be suspended. Dr M recommended that the time between the children and the mother resume, but that it be supervised.

10. The recommendation arose primarily because of the doctor’s opinion that the mother “failed to recognise or acknowledge the consequences of the episode of violence [by her] to [the eldest child]”.

11. On the same day, as Dr M’s affidavit was filed, the mother filed a Notice of Discontinuance with respect to the Response earlier filed by her. As a result of that Notice of Discontinuance there is no application by the mother for parenting orders before the Court.

12. During the course of earlier proceedings, the mother has been represented by the same solicitors. Those same solicitors continue to act for the mother in respect of the property issues yet to be finalised.

13. However, those same solicitors have confirmed to the Independent Children’s Lawyer (and subsequently to a Registrar of this Court at a compliance hearing) that they do not hold instructions in respect of any parenting issues, save to advise that the mother wants no further involvement with the children’s matters whatsoever.

14. In May of 2008 the Department of Child Safety had recommended the removal of the children from the mother’s care due to concerns about the mother’s violence towards the children. The mother has not seen the children since that time (now almost 12 months ago).

15. The mother has advised the Independent Children’s Lawyer personally that she has no intention of seeing the children.

16. The Independent Children’s Lawyer had also previously instructed Ms J to prepare a Family Report which was subsequently filed on 14 November 2008. That report refers to the mother’s position as a desire to remove herself from the children’s lives completely.

17. Approximately a week later, after that affidavit was filed, the matter was removed from the Magellan list of cases within the Court.

18. On 9 February 2009 a conciliation conference was held with a view to resolving children’s and property issues. The mother made it plain at that conference that her open position (that is, as distinct from any without prejudice position) was that she did not wish to discuss the children’s issues and did not wish to participate in any proceedings that related to children’s issues.

19. Subsequently, on 23 March 2009 a compliance check was held by a Registrar with respect to the property matters currently remaining in dispute.

20. At that time the father and the Independent Children’s Lawyer presented Minutes of Order, the subject of consent between those two parties. The mother again indicated that she would neither discuss nor sign the proposed orders.

21. In light of the history just described and the attitude of the mother, continually expressed for almost six months, and expressed both to a Registrar of this Court (more than once), and by her solicitors (who continue to act for her), and by her to a report writer whom she knew was charged with the responsibility of reporting matters relevant to the children’s best interests to the Court, it seems to me entirely appropriate in the sad and unusual circumstances of this case to make the orders sought jointly by the father and the Independent Children’s Lawyer.

22. In making the orders in the manner in which I have, I am conscious of the fact that the mother continues to be represented in proceedings yet to be heard before the Court and has had the opportunity to provide instructions and receive advice at a number of stages preliminary to the making of the orders.

23. I am also conscious of the provisions of Division 12A of the Act, and in particular to the mandatory requirement of s.69ZN for the Court to give effect to the principles enunciated in that section.

24. So far as the methodology adopted in the making of these orders is concerned, I have particularly had regard to the first, second and fifth Principles laid out in that section.

25. I am conscious of the fact that significant allegations of violence have been made. The orders proposed by the father, and consented to by the Independent Children’s Lawyer, provide that the children continue to live with their father and for time between the children and their mother to be supervised. In satisfying myself that such orders are in the best interests of the children, I particularly have in mind the comments made by the reporting psychiatrist Dr M earlier referred to.

26. The facts and circumstances earlier outlined, and in particular, the fact that the mother has played no part in the children’s lives since approximately 2008 and has evidenced on a number of separate occasions an intention not to participate further in parenting proceedings and, within the context of those proceedings, has indicated an unwillingness to discuss issues relating to the children or to agree to any time with the children, all of, in my view, compel a finding that an order for equal shared parental responsibility is not in the interests of these three children.

27. The proposed orders seek an order that “the father have sole parental responsibility for the children”. It seems to me highly arguable that such an order has the effect of excluding one parent from all decision making in respect of the children insofar as long term issues are concerned.

28. I am concerned that such an order is, then, a significant interference with the basic rights of an individual.

29. However, again by reason of the circumstances earlier outlined, it seems to me that such an order is appropriate and in the children’s best interests in this case.

30. I note in that respect that, by reason of the provisions of s.65DAC of the Act, if an order was to provide that the parents share responsibility for a child (whether equally or otherwise) there would be, by reason of that section, a mandatory requirement for the parties to consult and to make a genuine effort to come to a joint decision about that issue.

31. Whilst the circumstance earlier referred to might persuade a Court that some form of consultation prior to a party making the ultimate parenting decision with respect to a major long term issue is in the children’s best interests, in the particular circumstances of this case where the mother has, over what is now a reasonably significant period of time, steadfastly indicated an unwillingness to so participate, it seem to me appropriate and in the children’s best interests to make orders in terms of those sought by the father and agreed to by the Independent Children’s Lawyer.

32. For those reasons I will make orders in accordance with the Minutes of Order proposed by the father and agreed to by the Independent Children’s Lawyer.

I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:                 

Date:              5 May 2009