Howard and Harrison

[2011] FamCA 479

FAMILY COURT OF AUSTRALIA

HOWARD & HARRISON [2011] FamCA 479

FAMILY LAW – CHILDREN – With whom a child lives

APPLICANT: Mr Howard

RESPONDENT: Ms Harrison

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 2003 of 2009

DATE DELIVERED: 10 June 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 10 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr A. Barbayannis

SOLICITOR FOR THE RESPONDENT: Pearsons Barristers & Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms M. Agresta

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Kenna Teasdale Lawyers

Orders

BY CONSENT BETWEEN THE MOTHER AND THE ICL AND UNOPPOSED BY THE FATHER IT IS ORDERED 

1. That the mother have sole parental responsibility for the children S born … September 2003 and J born … December 2004.

2. That the children S born … September 2003 and J born … December 2004 live with the mother.

3. That the children S born … September 2003 and J born … December 2004 spend no time with the father.

4. That the Watch List Order made on 11 March 2009 in relation to S and J shall be and is hereby discharged and the solicitor for the mother shall send a copy of these orders to the Australian Federal Police and the Marshal of the Family Court of Australia.

5. That 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 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.

6. That my Reasons for Judgment given this day shall be transcribed and retained on the court file.

7. That the appointment of the Independent Children’s Lawyer shall be discharged and all outstanding applications otherwise dismissed.

IT IS NOTED

1. That the father attended court but refused the option for further legal advice, or to file material and he left court before the case proceeded unopposed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 2003 of 2009

Mr Howard

Applicant

And

Ms Harrison

Respondent

REASONS FOR JUDGMENT

1. There are two little girls, S aged 7½ and J aged 6½.  The case started in the Court some time ago now.  On the first return date, both parents attended.  These parties then appeared before me for the first LAT day on 5 October 2010.  Mr Howard (“the father”) did not appear that day.  Just prior to that there was a Family Report prepared.  Since then there has been a telephone mention with a Registrar, in May of this year, during which the father apparently hung up and terminated the call.  Since that mention, he has failed to file any material.  The Registrar’s orders made it clear that the matter could be heard to conclusion, without his material, if he failed to file it.

2. Today the father did appear at Court.  In the context, that was a surprise to the other parties.  He made it clear that he did not want any legal assistance.  He made it clear that he did not want to file any material.  He made it clear that he did not want to participate further in the proceedings.  He also made it clear that he wanted to spend regular unsupervised time with his children.  In turn, I made it clear to him that it was an unlikely result if he did not file material and did not participate in the proceedings.  I am satisfied that he was left in no doubt as to the limited options available to the Court if he chose not to participate.  Nevertheless he chose not to participate.

3. Troublingly, I was told by counsel for the mother that before court this morning, the father said to both counsel appearing today (counsel for the mother and counsel for the Independent Children’s Lawyer) that “this will end badly”.  Counsel for the ICL said it was a little more specific and that the father said that, “If he doesn’t get what he wants, this will end badly.”  I made it clear in front of the father that I obviously hoped that he was referring to the fact that from his point of view it would end badly because he would not be seeing his children.  If any sort of threat was intended, then that is quite a different matter.

4. There are criminal sanctions, and those who were present during the conversation can determine if any further action is required. 

5. The father has now left court.  I have before me the only material upon which I can rely and that is the mother’s Amended Response filed on 3 June 2011, her affidavit filed on 3 June 2011, the Family Report dated 27 September 2010, and the W Contact Centre Report dated 3 May 2010. 

6. Briefly the background is as follows.  S was born in September 2003.  J was born in December 2004.  The parents lived together from 1997 and separated in about 2008.  The mother’s account is that they separated initially in 2006 but that it was the father forcing his way back that had them living under the one roof for a few further years, until 2008. 

7. The mother recounts a really horrendous history of violence directed not only towards her but also directly to the children.  The father did not see the children from late 2008 until early 2010, at which time a Contact Centre regime was put in place.  He saw the children at the Contact Centre between January and April 2010.  It was unsuccessful.  The Contact Centre gives a report suggesting some troubled and troubling behaviour on the part of the children.

8. The father has not seen the children since April 2010.  In October 2010, in his absence, I made an order that he was not to see the children.  That is the order the mother seeks today in final terms.  She says that the children’s behaviour has improved since they have been without the stress of seeing their father.  Both children are having counselling, as is the mother. 

9. I am satisfied on the strength of the mother’s unchallenged material that there is a very genuine risk to these children in spending any time at all with their father.  The Family Report makes it very clear that there are risks, that if found proven, can really only result in the children not spending time with their father.  Given that I am satisfied of those risks, there is no option in terms of protecting the children’s best interests other than to make the orders as sought by the mother in her application.   

ORDERS DELIVERED

RECORDED   :   NOT TRANSCRIBED

1. As to the question of costs, that is a discretionary matter.  I do not think it would be a sensible use of my discretion in this circumstance.  Even in cost matters the children’s best interests can and should still be taken into account under the Family Law Act and I think a costs order here would be adding fuel to the fire.  I know very little about the father and his financial position.  Whilst there have been issues of whether he has participated properly, the case has not been unduly protracted.  There has been one appearance at Court other than today, and then these final orders, as well as a telephone mention.  In those circumstances, looking at something as far reaching as to whether the father has any contact at all with the children, I would not feel comfortable exercising my discretion in favour of costs.

RECORDED   :   NOT TRANSCRIBED

1. I am going to add a notation, so that it is obvious to anyone who picks up the orders, that the father attended Court but refused the option for further legal advice or to file material and he left Court before the case proceeded unopposed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 10 June 2011.

Associate: 

Date: