Kramer and Walsh and Anor

[2007] FamCA 650

FAMILY COURT OF AUSTRALIA

KRAMER & WALSH AND ANOR [2007] FamCA 650

FAMILY LAW – CHILDREN - With whom a child lives – Application for consent orders - Father’s whereabouts unknown – Mother suffering mental illness and undergoing drug counselling  -  Proceeded by oral application in absence of father -  Child to live with mother as provided and with maternal aunt at all other times – Child to spend time with father as agreed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Kramer

1^st RESPONDENT: Ms Walsh

2^nd RESPONDENT: Mr Hastings

FILE NUMBER: DNF 252 of 2002

DATE DELIVERED: 30 March 2007

PLACE DELIVERED: Darwin

JUDGMENT OF: Strickland J

HEARING DATE: 30 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Allan

SOLICITOR FOR THE APPLICANT: Mary Allan

COUNSEL FOR THE 1^ST RESPONDENT: Mr Snell

SOLICITOR FOR THE 1^ST RESPONDENT: Halfpennys

COUNSEL FOR THE 2^ND RESPONDENT: No appearance

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Strickland delivered this day will for all publication and reporting purposes be referred to as Kramer and Walsh.

Orders

1. That all previous orders be discharged.

2. That the child C born … June 1997 live with the mother as follows:

   (a)During the 2006/2007 Christmas holidays from Friday 15 December 2006 until 29 January 2007.

   (b)Every second week during first term commencing Monday 29 January 2007.

   (c)During the whole of the school holidays from Friday 6 April 2007 until Sunday 15 April 2007.

   (d)Every second week during second term commencing on Monday 23 April 2007.

   (e)During the second half of the mid-year school holidays from Monday 9 July 2007 until Sunday 22 July 2007.

   (f)Every second week during third term beginning on Monday 30 July 2007.

   (g)In addition to the time stipulated in paragraph (f) and following on continuously from that time the said child live with the mother:

   (i)Monday 6 August 2007;

   (ii)Monday 20 August 2007 and Tuesday 21 August 2007;

   (iii)Monday 3 September 2007, Tuesday 4 September 2007 and Wednesday 5 September 2007;

   (iv)Monday 17 September to Thursday 20 September 2007.

   (h)During the school holidays from 29 September 2007 until Sunday 7 October 2007.

   (i)Full time from Monday 8 October 2007.

   and with the maternal aunt at all other times.

3. That during school holidays when the mother is working the said child spend the hours the mother is working on week days with the maternal aunt with changeover to take place at the maternal aunt’s home or the C Bus Interchange as agreed between the parties from time to time.

4. That the mother continues to attend at the T Centre for treatment for her bi-polar condition and to that end the mother will meet with her case manager not less than once per fortnight.

5. That the mother continues to attend drug and alcohol counselling for a period of two years unless the cessation of such counselling is earlier recommended by the mother’s drug counsellor.

6. That the mother undergo random drug testing at the request of the T Centre and that the mother authorise the T Centre to provide the maternal aunt with information as to the results of those tests upon request from the maternal aunt such testing to take place not more often than once in each calendar month.

7. That the mother authorise the T Centre and her drug and alcohol counsellor to provide to the maternal aunt at her request, information about the mother’s mental health, treatment and any drug use.

8. That in the event that the mother is unable to care for the said child at any time, by reason of admission to hospital, the said child will remain with the maternal aunt during the period in which the mother is in hospital.

9. That the said child spend such time with the father as may be agreed between the father, the mother and the maternal aunt.

10. Pursuant to section 62B and section 65DA of the Family Law Act the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet and included in these orders.

11. That all applications be dismissed and removed from the active pending cases list.

FAMILY COURT OF AUSTRALIA AT  

FILE NO. DNF 252 OF 2002

MS KRAMER

Applicant

And

MS WALSH

1^st Respondent

MR HASTINGS

2^nd Respondent

REASONS FOR JUDGMENT

1. This matter has been referred to me by Registrar Dore, who has had the conduct of the matter from the point of view of this Court.

2. I need to refer to the recent history of the matter.  It came to this Court on an application for consent orders filed on 15 December 2006, that application being filed by the mother of the child, the subject of the proceedings.  There are two respondents named, namely, the father and the maternal aunt. 

3. In the consent orders sought in that application, it was proposed that all previous orders be discharged and that new parenting orders put in place in relation to the child, C born … June 1997, who is almost 10 years of age.

4. The problem though with how this matter has proceeded in this Court is that although the mother and the maternal aunt have consented to the orders, the father has not because he cannot be located.  The matter was initially requisitioned by Registrar Dore, pointing out a number of issues not the least of which was that you cannot obtain a consent order unless everyone consents, and also raising obviously the issue about service upon the father.

5. Now nothing was done in relation to that first issue, but in relation to the second issue there are now affidavits before the Court which indicate the attempts by the mother's solicitor to locate the father.  Two addresses were found for him and correspondence was sent to those addresses providing him with a copy of the documents filed, in particular, the draft consent order sought in the application.  There has been no response to those letters.

6. The position generally of the father is that I am told in an affidavit of the mother that she has heard nothing from him since the separation which was in 2001, but even more significantly, the father has not maintained contact with C.  For a while, she lived with the mother, and for a while, she lived with the maternal aunt.  All the mother knows, and indeed the maternal aunt for that matter, is that the father moved to S at some stage and I understand that both addresses that were located were in S.  In any event, nothing has been heard from him.  He has not maintained any contact.

7. There were orders made on 27 May 2004 in the Federal Magistrates Court and I note that at that time, the father was represented by a solicitor.  That order provided for the child to reside with the maternal aunt and for the father to have contact with the child as agreed with the maternal aunt.  Just pausing there, I am told both on affidavit and from the Bar table that the father has not had any contact with the child since that order and, indeed, he has not sought that contact and as Ms Allan has correctly put, he has not provided an address to either the mother or the maternal aunt which would allow them to offer contact to him.

8. In relation to that order of 27 May 2004, it also provided for the mother to have contact with the child as agreed between her and the maternal aunt.  That was subject to certain conditions and there were injunctions put in place in that order because at that time and the reason primarily for the child residing with the maternal aunt was that the mother was having difficulty with drugs and also her mental health.  I am told again by affidavit and from the Bar Table that the mother's mental illness has now been diagnosed and she is receiving treatment for that.

9. In relation to the drugs issue, I am told that the mother is receiving drug counselling and that she is drug-free.  As a result of that, the maternal aunt has entered into a de facto arrangement with the mother whereby the mother has been seeing more of the child since December 2006.  It is now proposed that new orders be put in place which indeed provide for the child to spend even more time with the mother.  I note importantly though that the proposed new orders still provide safeguards for the child in that they provide for the mother to continue to attend at the T Centre for treatment for her bipolar condition.  And further, that the mother continues to attend drug and alcohol counselling for a period of two years.  And indeed, even further to that, it provides for the mother to undergo random drug testing.  Thus as I say, although the mother has made significant progress, clearly there is still a need to ensure the safety of the child, and that is the purport of those parts of the proposed order that I have just referred to.

10. To repeat, in response to the requisitions raised by the Registrar, the applicant addressed the issue of attempting to locate the father but no thought was given to the problem of the major issue of how a consent order could be made without the consent of the father. 

11. Today I have invited counsel for the mother and the maternal aunt to consider making an oral application seeking orders in the same terms as the consent order, but obviously not by consent and make submissions to me as to why I should hear such an application and make the orders, and that has now been done.  What should have happened of course is following upon the requisition, the mother should have filed the appropriate application seeking orders not by consent, and that would have then proceeded in the usual way.  That was not done but, as I say, in my view it can be remedied by the oral application that is now before me.

12. I am prepared to proceed in the absence of the father.  Every attempt has been made to serve him with the documents.  I am also comforted by the fact that the father has not chosen to take any role in this child’s life at least since the last orders were made.  In any event, with any parenting order, although it is a final order that I will be making, the father always has the opportunity and the ability to make a fresh application to this Court if he wants to take a role in this child’s life in the future.  I think that would at least give him something to work with if he does come back on the scene. 

13. Even though I am prepared to proceed in the way that I have indicated, I still need to consider the relevant sections of the Family Law Act. Firstly, there is Section 60B which sets out the objects of Part VII of the Act and the principles underlying that Part.  Next and importantly, there is Section 60CA which provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.  And then there is Section 60CC which sets out how a Court determines what is in a child’s best interests and, particularly, sets out the considerations that the Court has to have regard to in determining what is in the child’s best interests.

14. Given the history of this matter and the evidence that is currently before me, I am satisfied that the orders sought are in the best interests of this child.

15. I propose to make the orders sought, apart from paragraph 1 which is the order in relation to service.  I do not need to make that order any more.

16. Next, because I am making a parenting order, I need to consider Section 61DA of the Act which provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.  That presumption though does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence.  I note neither of those apply and so prima facie, the presumption applies.  However, the presumption can be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

17. I note that in the order of 27 May 2004, there was no order made in relation to long-term parental responsibility but there was an order that the maternal aunt be solely responsible for the decisions concerning the child’s day-to-day care, welfare and development.  The effect of there being no order made about long-term responsibility is that Section 61C of the Act continued to apply. That section provides that each of the parents of the child who is not 18 has parental responsibility for the child.  Thus the effect of the order of 27 May 2004 was that the mother and the father continue to have parental responsibility for C.

18. Interestingly, there was no order providing for the maternal aunt to have any long-term parental responsibility for the child and no order is sought today about that either.  Thus the effect of the order that I proposed to made today is that Section 61C will continue to apply and the parents of the child will have parental responsibility for that child and the maternal aunt will not have any long-term parental responsibilities.  In other words no change to the situation that has applied since the order of 27 May 2004. 

19. I consider that that is in the best interests of this child, and thus the presumption is rebutted.  The father has chosen not to be involved in the life of his child and in any event he consented to the order of 27 May 2004 and which I am not changing in this regard.

20. The only other matter I need to refer to is the orders that are sought today do not include any order in relation to the father.  I have weighed up whether there should be an order made in much the same terms as the existing order, namely, providing that the father is able to spend time with the child as may be agreed between him and not only the maternal aunt this time but also the mother.  In the circumstances I consider that it is the interests of this child to make such an order.  That would at least allow the father to have a basis to work from if he does decide to come back into the life of his child.  But of course, it will be subject to agreement of the other parties and the father will have the ability to make any application for any further order that he might seek, depending on the circumstances that exist at the time.

21. Both counsel at the bar table have indicated they have no difficulty with such an order being made and so I propose to make that order as well.

I certify that the preceding
21 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland.
The 30^th day of March 2007.

……………………………………….
Associate