Look and Look

[2008] FamCA 937

FAMILY COURT OF AUSTRALIA

LOOK & LOOK [2008] FamCA 937

FAMILY LAW – CHILDREN – Best interests – Consent orders

APPLICANT: Mr Look

RESPONDENT: Ms Look

FILE NUMBER: BRF 291 of 2005

DATE DELIVERED: 15 October 2008

PLACE DELIVERED: Brisbane

JUDGMENT OF: O'Reilly J

HEARING DATE: 15 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tolton

SOLICITOR FOR THE APPLICANT: Burchill & Horsey Lawyers

COUNSEL FOR THE RESPONDENT: Ms Martin

SOLICITOR FOR THE RESPONDENT: Berck & Associates

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr McGregor

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Carter Naughton Rice Family Law

Orders

1. The child … born on … April 1999 live with the mother.

2. The mother have sole parental responsibility for the child in relation to the major long term issues concerning the child.

3. The father not spend time with nor communicate with the child.

4. The independent children's lawyer is discharged.

5. There be no order as to costs.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF291 of 2005

MR LOOK

Applicant

And

MS LOOK

Respondent

REASONS FOR JUDGMENT

1. These proceedings were commenced on 20 September 2005 by an application for final orders filed by the father Mr Look.  They concern the parties’ child born in April 1999, now nine and a half years.  The father has discontinued the proceedings by a notice of discontinuance filed on 14 August 2008.

2. However, by her amended response filed on 3 April 2007 (original filed on 15 November 2005 and earlier amended on 14 August 2006) the mother Ms Look has sought orders that the consent orders made concerning the child on 7 March 2005 be discharged, that the child with her, the father not communicate nor spend time with the child and that she have sole parental responsibility for him.  Thus the discontinuance of the father's proceedings has not put an end to the matter procedurally or substantively.

3. On 7 March 2005 final consent orders had been made that the child live with the mother, the father have contact with the child by writing to him at any time at the address at which he resides with the mother, the mother authorise the child's school to release to the father all information, including school reports concerning the child, as the father may request, the parties keep each other informed as to their addresses and notify any change of address within 14 days of any change and the mother keep the father informed of the school at which the child attends and notify the father of any change of school within 14 days of change.

4. On 2 July 2008 I ordered that the matter be listed for trial on 2, 3, 4 and 5 March 2009, but also that it be listed earlier as the reserve matter on 15, 16, 17 and 18 October 2008 and made trial directions in relation to the listing today.

5. On 9 September 2008 I ordered relevantly:

   (1)The father must appear at the trial listed at 10 am on Wednesday 15 October 2008 by himself or a legal representative.

   (2)If the father does not appear at the trial by himself or a legal representative the matter will proceed to be determined under r 11.02(2)(c) of the Family Law Rules 2004 on the undefended basis in relation to the parenting orders sought by the mother in her amended response filed on 3 April 2007.

   That order, plainly enough, was made in anticipation that the father might not appear today by himself or a legal representative given that there was no appearance by him or on his behalf on 9 September 2008.

6. However, today Mr Tolton of Counsel instructed by Burchill Horsey, who have been the father's solicitors on the record for some time, appears to not oppose the orders now sought by the mother in her amended response, those orders being ones indeed to which the independent children's lawyer consents.

7. Although there is no opposition by the father to the orders now sought by the mother and there is consent by the independent children's lawyer to them it is necessary nonetheless that I consider the s 60CC factors to determine the child's best interests.

8. In relation to parental responsibility I am mindful of the matters in s 61C and s 61DA of the Family Law Act 1975 (Cth). However, in this case the presumption in s 61DA that it is in the best interests of a child that the child's parents have equal shared parental responsibility for the child is ousted by reference to s 61DA(2) as there are reasonable grounds to believe the father has physically abused the child. Indeed, on the father's own plea of guilty in 1999 he was sentenced to four years' imprisonment for assault of the child when the child was three months and served about one and a half years of that sentence. The injuries suffered by the child are detailed in the material.

9. The child lives with the mother who has always been his primary carer.  In all of the circumstances of the case I am satisfied that it is in the child's best interests for the mother to have sole parental responsibility for him.

10. I turn now to the s 60CC factors as to the remaining issues, namely, whether in effect the existing orders remain in place or the orders sought by the mother be made.  In the circumstances of the independent children's lawyer consenting to the orders and the father not opposing them I am able to limit my observations in relation to the s 60CC factors, particularly having regard to the narrow, but nonetheless important, matter to be decided.

11. It is a rare case indeed in which it might be concluded that there is little or no benefit in a child having a meaningful relationship with a parent.  In this particular case, however, reference must be made to the terms of the notice of child abuse filed on 14 November 2005 and the evidence supporting the matters there contended.

12. The various experts' reports in the matter, to which I need not refer in detail, are not directed specifically to the question whether there is a need to protect the child from physical or psychological harm.  Indeed, the reports are not specifically directed to any of the matters set out in s 60CC(3) in respect of the narrow, but important, issue to be determined.  Rather, many of the reports are directed to the issues as they stood before the father discontinued his application which commenced the proceedings.  It is selfevident that most of the s 60CC(3) matters are not directly germane to the narrow, but important, issue to be determined.

13. Having considered all of the evidence, the positions of the independent children's lawyer and the father and having considered the s 60CC factors to the extent relevant to the issue to be decided, I am persuaded that the child's best interests will be served by making the orders sought by the mother.

    RECORDED  :  NOT TRANSCRIBED

    ORDERS DELIVERED

    RECORDED  :  NOT TRANSCRIBED

    ORDER DELIVERED

    RECORDED  :  NOT TRANSCRIBED

14. There be no order as to costs.

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O'Reilly

Associate: 

Date: