L and M (No.1)
[2002] FMCAfam 181
•17 June 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| L & M (No.1) | [2002] FMCAfam 181 |
| FAMILY LAW – Residence – proceeding undefended – Mother disappeared after interim hearing – no contact with child – declaration of name. |
| Applicant: | M L |
| Respondent: | D G M |
| File No: | ZM 2642 of 2002 |
| Delivered on: | 17 June 2002 |
| Delivered at: | Melbourne |
| Hearing Date: | 17 June 2002 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Mr Kennedy |
| Solicitors for the Applicant: |
| Counsel for the Respondent: | No appearance |
| Solicitors for the Respondent: | No appearance |
| Counsel for the Child Representative: | Mr Howman |
| Solicitors for the Child Representative: |
ORDERS
IT IS ORDERED
THAT all extant Orders be discharged including the Orders made by the Federal Magistrates Court of Australia at Hamilton on the 14th day of February 2002 appointing a Child Representative.
THAT the Father and the Mother have joint responsibility for making decisions about the long term care, welfare and development of the child of the relationship B M L born on the 5th day of January 1999.
THAT the Father have sole responsibility for decisions about the day-to-day care, welfare and development of the said child.
THAT the said child live with the Father on a day-to-day basis.
THAT the Mother’s contact with the said child be agreed between the parties.
THAT these proceedings be removed from the Active Pending Cases List maintained by the Court.
IT IS DIRECTED
THAT all Applications filed by the parties be otherwise dismissed.
THAT pursuant to s.65DA(2) of the Family Law Act1975, 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 Annexure A and these particulars are included in these orders.
IT IS CERTIFIED
THAT pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001 this matter reasonably required the attendance as Counsel as advocate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
ZM 2642 of 2002
| M L |
Applicant
And
| D G M |
Respondent
REASONS FOR JUDGMENT
The matter is proceeding before me today undefended and ex parte.
I am sitting in Melbourne and there is a video-link between Melbourne and H Court where the father and his representative Mr Kennedy and the child representative Mr Howman are located. The matter comes on for hearing by virtue of orders made by me on 14 February 2002 when I was sitting at H during the H circuit.
At that time the application was adjourned for final hearing to 17 June at 10 am. It was to be heard together with the matter of M and H-M which also concerns the mother, although it is about a different child with a different father and I have just given judgment in that matter. On 14 February the matter was argued before me and
I made interim orders whereby B, who had been living with his mother, was to live until further order with his father and his father was to have the responsibility for the day-to-day care, welfare and development of B.
My reasons for coming to that decision are set out in the reasons for judgment that I gave on that day and which were subsequently published. I do not intend to go over all the matters that are set out in that judgment, suffice it to say that at the conclusion I was satisfied that it was in B's best interests that he should live with his father, certainly pending the hearing. I indicated then, as I do now, that there were matters that I could not make final findings about because there was no cross-examination, but the material before me allowed me to make limited findings.
What I said about B in paragraph 57 of my reasons for judgment on 14 February were that:
“There are virtually no proposals for contact made by the mother which she asserts is because she is living in a town which is some distance away from H and she has no car. Nevertheless, she has not, it would appear, until today revealed where she is living.”
I then went on to say in paragraph 59:
“The mother has provided no information at all about her proposals for the care of B. The father has set out in some detail the present arrangements in his household. B would live with him and his defacto wife and her two children with whom B was living between September and early December 2001. Other than an indication today that the mother lives in Rainbow in a three-bedroom home, there are no proposals from her at all about the accommodation or her arrangements for his care.”
In paragraph 60 I said:
“The mother has lived at a number of different addresses. There is a reasonable degree of evidence to satisfy me, at this stage at least, that it is likely she has been dealing in drugs between H and Adelaide. She has been required to move a number of times and there is no guarantee she will not be required to move again. There is no evidence from her to suggest that her current accommodation is any more stable than that which she has had over the last couple of years. In this regard, in my view, the father is in a better position to provide for the needs of the child.”
I said in paragraph 61:
“I am also concerned about the mother's regular trips interstate and her need to leave the child with his father from time to time, that there is some risk to his physical safety as well. The fact that there has been a need to find someone to care for him suggests that the mother is not able to do so at all times.”
The proposals by the father for residence of B remain similar to those which he put forward at the interim hearing. He has continued to reside at his present address in H. He has continued to live in a defacto relationship with Ms M and they have now been living together for more than 14 months.
The other proposal made by the father is that B will continue to have contact with T, who is the mother's other child who by virtue of orders made by me today, and previous interim orders, lives with her father in H. It is the father's proposal in this case that B attend the same school as T so that they will continue to have contact with each other. That, in my view, is important.
At the conclusion of the hearing on 14 February I made orders, first of all, for the child B to be delivered to the father at 4 pm on Thursday, 14 February at the McDonald's Family Restaurant on the Western Highway, Horsham. I then made orders for contact providing for the mother to have contact each alternate weekend and for half of the school holidays and other times as agreed. The changeover place was to be McDonald's restaurant Western Highway, Horsham.
In an affidavit sworn by the father for the purpose of these proceedings he has indicated that he attended at the McDonald's restaurant at Horsham in accordance with the orders on 14 February at 5 pm to collect B. A telephone call was received from the mother saying she could not attend and, as a result, the father went to the town of Rainbow to collect B and collected him from the police station. He then attended at McDonald's Horsham on 22 February at
5 pm to comply with the orders for contact. The mother did not attend. He waited until 6 pm. There was no attendance by the mother and on this occasion no message to say whether or not she was coming.
Subsequently his solicitors wrote to the mother's solicitors indicating that, as a result of the fact that he was dependent upon Centrelink for his income, the cost of travel, and the mother's failure to attend, he proposed that thereafter upon notification from her that she would attend, and that the contact should take place in McDonald's in H. I made findings in my judgment on 14 February about the mother's capacity to contact the father. She has his mobile phone number. He has resided at the same residence that he was residing at in February and he has had no contact from her at all, nor has she endeavoured to make any contact with B. Her solicitors have now filed a notice that they have ceased to act on her behalf and they have no future address for her. She seems to have disappeared from her last address and her present whereabouts are unknown.
In relation to the contact arrangements, the father in this case has experienced exactly the same problems that Mr Mc, the father of T, also has suffered given that the orders I made were for contact of a similar nature. It seems that the mother has simply disappeared and has made no effort at all to see either of her children.
As part of the orders I made on 14 February I ordered that the child be separately represented and Mr Howman appears in that capacity. I also ordered a family report. Ms Silvestro of the Melbourne registry of the Family Court prepared a family report dated 22 April 2002. She interviewed Mr L and Ms M and had a brief interview with B and observed B with his father and Ms M. The mother took no part in the interview process and was not able to be contacted by the counsellor nor attempted to contact her. As a result, she was not included in any observations made by the counsellor.
The counsellor noted that B who is three years old presents as a robust, healthy and happy child. He seems to have a close and positive relationship with his father and derives security and confidence from him. She observed that he loves his father and seems happy with him, and similarly he seems secure and happy with Ms M. He knows that Ms Morris is his mother, but reports that he does not see her any more because, to use his words, "she's far away". He also appeared to have a good and significant relationship with his paternal grandmother who had been holidaying from Queensland and accompanied on the day of interview.
Given the limitations that the counsellor was under as the mother did not attend for interview, she noted that it was difficult for B to understand or make sense of his mother's absence and for the number of disruptions in his life in the recent past. She noted that she had seen nothing to indicate that B was not well cared for or unsettled in his current family environment. She noted that Ms M seems to be a loving and caring parent who is able to attend to the child's needs and is able to accept and promote the importance of Ms Ms' role in B's life. She noted that both Mr L and Ms M seemed to be cognisant of and attended to the child's needs.
The counsellor noted that in particular it was important to consider stability and security for B as he does not seem to have had a predictable or secure lifestyle to this point. In her view, it is important that as M stability, continuity and security is afforded to him as is possible, and this is critical to his emotional and psychological wellbeing. She said that he particularly needs to have the ability to trust, depend and rely unconditionally on one or both parents. Ms Silvestro noted that Mr L recognised the importance of this and seems willing to provide it. She concluded that residence should not be changed unless the court were to find that the current environment was not suitable for B.
Those observations accord with the observations that I made on 14 February and the reasons why I thought it was in B's interest then to be placed with his father. I am satisfied for those reasons that having regard to the matters in the Family Law Act it is in B's best interests to remain living with his father. The child representative and Mr Kennedy on behalf of the father have submitted some orders which they seek that I make. The last order it is proposed that the court makes is that the father be permitted to register the child with the Registry of Births, Deaths and Marriages under the name B M L. I have heard some submissions as to why I should make that order and intend to reserve my decision on that issue.
Otherwise, there will be orders in terms of the minutes submitted by the father and the child representative which will be marked exhibit A and placed on the court file. I will reserve my decision in relation to the question of the registration of B's name. There will be orders pursuant to section 65DA of the Family Law Act.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Mardi Jarvis
Date: 12 August 2002
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