Lessil and Hollis

[2007] FamCA 850

FAMILY COURT OF AUSTRALIA

LESSIL & HOLLIS [2007] FamCA 850

FAMILY LAW - CHILDREN – Less Adversarial Trial procedure.  Mother fails to co-operate.  Orders made upon recommendation of the Independent Children’s Lawyer and supported by the Family Consultant.

Family Law Act (1975)

APPLICANT: Ms Lessil

RESPONDENT: Mr Hollis

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 2510 of 2005

DATE DELIVERED: 13 August 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 13 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance

SOLICITOR FOR THE APPLICANT: Victorian Aboriginal Legal Service

COUNSEL FOR THE RESPONDENT: Ms Billeam

SOLICITOR FOR THE RESPONDENT: Victoria Legal Aid

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Salce

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Forte Family Lawyers

Orders

1. That both parents have equal shared parental responsibility for the elder son born … November 1999 and the younger son born … March 2001 (“the Children”.

2. That the Children live with the Father.

3. That the Children spend time (“contact”) with the Mother as follows:

   (a)each alternate weekend from 5.00p.m. Friday to 5.00p.m. Sunday, extended to Monday 5.00p.m. if Monday is a public holiday, save that if Mother’s Day falls on a non contact weekend, the Mother shall spend time with the Children on that day from 10.00a.m. to 4.00p.m., and if Father’s Day falls on a scheduled weekend, the Father shall spend time with the Children that weekend from 10.00a.m. to 4.00p.m;

(b)for one half of the school holidays, as agreed between the parties, and in default of agreement, the first half of the holidays, save for the Christmas times provided for herein;

(c)from 6.00p.m. Christmas Eve until noon Christmas Day in 2007 and each alternate year thereafter, and from noon Christmas Day to 6.00p.m. Boxing Day and each alternate year thereafter, in 2008 and each alternate year thereafter;

(d)on the Mother’s birthday and each of the Children’s birthdays for not less than 2 hours, if they fall on a weekday, and for not less than 4 hours if they fall on a weekend. If the Father’s birthday or the Children’s birthdays fall on a day when they are in the care of the Mother, the Father shall spend not less than 2 hours with the Children if a weekday and not less than 4 hours if a weekend;

(e)telephone contact at any reasonable time;

(f)as otherwise agreed between the parties.

1. That transportation for the handover of the Children be shared equally between the parties.

2. That each parent be restrained from denigrating the other in the presence or hearing of either or both of the Children.

3. That each parent keep the other informed of their residential address and telephone number at all times and notify the other within 24 hours of any change to either their address or telephone number.

4. That each parent inform the other as soon as reasonably practicable of any serious medical condition or hospitalisation affecting the children and they shall authorise the treating doctor to speak to the other parent.

5. That the Father authorise any school which the Children may attend to provide to the Mother copies of all school reports, photographs, details of parent/teacher interviews, or other information concerning their schooling.

6. That pursuant to S65DA(2), and 62(B) 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 Fact Sheet annexed hereto and these particulars are included in these Orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2510  of 2005

Ms Lessil

Applicant

And

Mr Hollis

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me by way of mention in the Less Adversarial Trial procedures.  Ms Billeam appears for the respondent father and Mr Salce appears for the Independent Children's Lawyer.  There is no appearance this day by the applicant mother.  I had her called at 9.30 am.  She did not respond to the call. 

2. The purpose of the hearing was to receive a report from Mr U following orders I made on 18 May 2007.  On that day the mother was represented by counsel.  I have received the report and propose to direct that a transcription of Mr U's report be made and placed on the court file.

3. Mr U explained that he received a telephone call from the mother on the day of the interview, namely 13 July 2007.  She informed him that she did not propose attending the interview nor to continue with her application, explaining that she had been to court on two previous occasions seeking orders for the children to live with her and had been unsuccessful.  She informed Mr U that she felt her chances of succeeding with her application “were slim”, for which reason she did not propose to continue in court.

4. Mr U nonetheless proceeded with the conference.  He reported that the elder son who was born in 1999 and the younger son who was born in 2001 attend the M Primary School.  The father, who is not presently employed explained to him that over the period following their separation the mother reduced the amount of time she spent with the boys, who were then living with him. 

5. Having addressed information provided by the father concerning the mother’s work arrangements, the father explained that whilst the court orders did not provide for any holiday contact, suggestions had been made in the past for the mother to have the boys for part of those holidays.  However, she was unable to do so.  Mr U said it appeared that the two boys had never spent extended time with their mother during the school holidays.  However, he pointed out that the court orders provided for the mother to speak with the two boys on the phone on a Tuesday and Thursday and he understood that the telephone calls did take place.  Furthermore, the parents also called each other on a Friday evening to confirm that contact would occur the following day.

6. Mr U reported that the father was adamant that he wanted the children to spend time with their mother and indicated that he would prefer them to spend one week of the school holidays with her.  The father was confident that the two boys would enjoy that time with her.  He expressed to Mr U his belief that it was “bad for the children not to see their mother”, commenting that they “take it out on him whenever they don’t get a chance to go”.

7. In the course of the interview Mr U had with the two boys, they spoke about spending less and less time with their mother, “possibly due to her work commitments”.  He reported that the children felt that their mother’s work was more important to her than they were.  Both of the boys indicated to Mr U that they missed their mother and desired to spend more time with her.  Mr U said:

   “For whatever reasons, [the mother] I believe, has decided to leave the current arrangements as they stand, and also she has chosen to spend less and less time with the boys, and if what [the father] claims is correct, basically the boys have not spent any time with her for part of the school holidays”.

8. Mr U explained that research literature and conventional wisdom indicated that children need to have “an ongoing relationship with both parents after a separation”.  Indeed, recent amendments to the Family Law Act (1975) reinforced and supported that research.  He made it clear that the father welcomed the children spending more time with their mother.  Regrettably, that was not happening.  He went on to report:

   “Whist one could well see a number of benefits from orders providing for the children to be with [the mother] every second weekend and for part of the school holidays, there is a risk that her inability to take up this time will only reinforce the already developing doubts held by the boys that they are not cherished or loved by their mother.”

9. Mr U made it clear that were the mother genuinely able to commit to such an arrangement, he would totally support the orders noting however that much will depend upon the mother’s intention in the future. 

10. In my view, with an obvious disregard of her parental obligations, the mother ignored the purpose and basis for her attendance upon Mr U for quite inadequate reasons and in so doing has let her children down in a material manner.  It was most disappointing.

11. The boys wish to see more of their mother.  They are encouraged to do so by their father, but she remains somewhat indifferent to them.  It is very distressing in the circumstances and, as I said, extremely disappointing.  I have got no doubt that the father, who supports the children, copes well with this unusual circumstance and is left almost alone with the onerous task of nurturing the children and marshalling them through this difficulty.  I have no doubt that the father is offering the children excellent parenting in the circumstances.  It is clear from the report of Mr U that the children are well nurtured and cared by him, and I certainly congratulate the father and wish him the best in the future.

12. The orders that have been proposed by Ms Billeam on behalf of the father are in standard terms.  I need not record them into this short extempore judgment.  They are, significantly in my view, supported by Mr Salce.  Mr U has also considered the proposed orders.  He supports them too, qualifying it, however, by saying that he doubts whether the mother will lift her position so as to undertake the terms of the order and spend the time with the children that is offered to her.  That will be her loss in the result and ultimately, it seems to me, under the careful nurturance of the father, the children will prosper in any event. 

13. Maybe the passage of time will see greater industry on the part of the mother to take up her parental obligations.  This is a sad case in many ways, with two parents who come to court to establish arrangements in order to spend time with the children, but in this case, the mother who has everything offered to her simply does not undertake the opportunity.  In the circumstances I propose to make the orders.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  21 August 2007.