Juliet and Ramsay (No 2)

[2011] FamCA 541

FAMILY COURT OF AUSTRALIA

JULIET & RAMSAY (NO 2) [2011] FamCA 541

FAMILY LAW - CHILDREN – final orders made ex parte – application by the father seeking orders that the child spend time with the mother at times to be agreed between the parties – where previous orders provided that the mother have regular supervised time with the child – where there are concerns about the mother’s compliance with previous orders – where the mother did not attend at the hearing – best interests – orders that the child spend time with the mother to be agreed between the parties.

FAMILY LAW - CHILDREN – final orders – parental responsibility – where there were previous consent orders for joint parental responsibility – whether orders for joint parental responsibility should be continued – where the parties have a difficult relationship – where it is not in the best interests of the child for the parties to have joint parental responsibility – orders that the father have sole parental responsibility.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Juliet

RESPONDENT: Ms Ramsay

FILE NUMBER: ADC 2341 of 2009

DATE DELIVERED: 29 June 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 29 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Britton

SOLICITOR FOR THE APPLICANT: Ms J. Ekin-Smyth

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: n/a

Orders

1. The father shall have the sole parental responsibility for the child D born on … January 2001.

1. Paragraph 6 of the Order of 8 July 2010 is discharged.

1. The mother shall spend time with the child D upon such times and conditions as shall be agreed between the parties.

1. All outstanding Applications are dismissed and the proceedings are removed from the Active Pending Cases List.

IT IS NOTED that publication of this judgment under the pseudonym Juliet & Ramsay (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2341 of 2009

Mr Juliet

Applicant

And

Ms Ramsay

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application in relation to the child D, the child of the parties who was born in January 2001, D is therefore aged 10.  The matter came on before the Court and was set for trial when consent orders were made on 8 July 2010 which provided for D to live with the father, that the parties have joint parental responsibility and that the mother spend time with the child each alternate Saturday and Sunday and on special occasions.  The specific orders provided for the handovers and for all time that the mother spent with the child to be supervised by the maternal grandmother, Ms G, and that the mother was to ensure that there was no unsupervised contact or communication between the child and the mother’s son, B. 

2. Subsequently, further proceedings were commenced by the father filing his initiating application on 15 March 2011 which was heard ex parte on 17 March 2011.  The matter was adjourned and an order was made authorising a recovery order in relation to the child D who had not been returned to the care of her father by the mother.  I made those orders relying upon the initiating application and the affidavit material that was filed in support of that application which indicated serious concerns about the mother’s compliance with the orders for supervision and obviously about the mother’s compliance with the orders requiring the child D to be returned to the care of the father.

3. The matter has been heard on other occasions when, after the mother has been aware of the proceedings, she has not attended.  She did, however, attend on the last occasion on 23 May 2011 when in her presence I made specific orders adjourning the matter to me this morning on the basis that the mother was to obtain legal advice as a matter of urgency.  The mother had indicated that she proposed to do so.  The mother was ordered to file and serve a response and an affidavit upon which she relied by 4:00 pm on 23 June 2011.  During the period of the adjournment the suspension of the order for the mother to spend time with the child D was continued.

4. The matter comes on before me this morning.  It is now 9.30 am.  At approximately 9.20 am or 9.25 am the Court Officer called the mother specifically in the precincts of the Court.  There has been no appearance. 

5. The orders that I make by way of final orders must always be orders which are in the best interests of the child D.  One of the significant matters to be determined is whether it is in the best interests of the child to make orders which would continue a meaningful relationship between the mother and D.  I also have to consider the provisions of section 65DAA and other provisions of Part VII which raised the presumption that it is in the best interests of the child for there to be joint parental responsibility. 

6. Having considered, however, the difficulties in the ongoing relationship between the parties and the mother’s past behaviour, I am satisfied that in this particular instance, it is not in D’s best interests for there to be an order which continues the joint parental responsibility.  It is clear from the material on the court file that the parties are unable to communicate in a reasonable fashion concerning the best interests of the child and her arrangements, be they significant long-term or short-term arrangements.

7. It is also clear from the mother’s failure to participate in the proceedings and her actions set out in the father’s affidavit that it is not in the child’s best interests for the orders in paragraph 6 of the order of Burr J of 8 July 2010 to continue. 

8. The father in his Initiating Application seeks an order that the child spend time with the mother at such times and upon such conditions as agreed between the parties.  In view of the mother’s failure to participate in these proceedings and the concern about the mother’s capacity to protect the child and to provide a safe environment for the child as set out in the material filed by the father, I believe such an order is in the best interests of the child and will achieve both of the primary considerations in section 60CC, namely, protecting the child and ensuring that whilst it is in the best interests for the child there be a meaningful relationship maintained with each parent.

9. Those orders will be drawn and sent to the mother’s last known address which we had as C Street, Adelaide Suburb 1.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 29 June 2011.

Associate: 

Date:  12 July 2011