Mahik and Talbot

[2009] FamCA 18

FAMILY COURT OF AUSTRALIA

MAHIK & TALBOT [2009] FamCA 18

FAMILY LAW – CHILDREN – Final child orders – no appearance by father

Family Law Act 1975 (Cth)

APPLICANT: Ms Mahik

RESPONDENT: Mr Talbot

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 5237 of 2007

DATE DELIVERED: 21 JANUARY 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: YOUNG J

HEARING DATE: 21 JANUARY 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS JENKINSON

SOLICITOR FOR THE APPLICANT: MACGREGORS SOLICITORS

COUNSEL FOR THE RESPONDENT: NO APPEARANCE

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MS WATTS

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: SEPTIMUS JONES & LEE

Orders

IT IS ORDERED:

1. THAT all previous children and parenting orders for the child … born … June 2006 be discharged.

2. THAT the mother have sole parental responsibility for the child.

3. THAT the child live with her mother.

4. THAT the father’s time to be spent with the child and any communication with her be reserved.

5. THAT as soon as practicable the solicitor for the mother serve upon the father by prepaid mail at his address for service on the record, G Street, T, Victoria, the following documents:

   (a)         a sealed copy of this order;

   (b)         the extempore reasons for judgment;

   (c)         the mother’s affidavit filed by leave this day.

6. THAT all documents before this court by way of subpoena be forthwith returned by the Subpoenas Clerk, Melbourne Registry, Family Court to the person or organisation who produced such documents to the court.

7. THAT the appointment of the Independent Children’s Lawyer be forthwith discharged.

8. THAT the application for final orders and application in a case both filed 11 May 2007, and any responses thereto be otherwise dismissed and the proceedings be removed from the list of cases awaiting hearing.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of solicitors appearing as counsel for each of mother and the Independent Children’s Lawyer.

2. Pursuant to s 62B and s 65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

3. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

IT IS NOTED:

A.       THAT the father was called out of court and did not attend this day.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5237 of 2007

MS MAHIK

Applicant

And

MR TALBOT

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Mahik and Talbot has been referred to me for final hearing in the Judicial Duty List.  Ms Jenkinson, solicitor, appears for the mother, who is in court; Ms Watts, solicitor, represents the independent children's lawyer; and there is no appearance by or on behalf of the father.  The father was called out of court and did not answer that call.

2. Previously the father had solicitors, who filed a notice of ceasing to act on 7 March 2008.  The father's address for service was then notified to the court as G Street, T.

3. I have given leave to the mother's solicitors this day to file a further affidavit, which I have read and relied upon.  In due course it would be appropriate for that affidavit, together with a sealed copy of these orders, to be served upon the father at his last known address.

4. The previous interim orders in this case were made on 6 July 2007 before Senior Registrar FitzGibbon.  Those orders provided for a form of supervised time to be spent by the father with the child, born in June 2006.  They also provided for a psychiatric report to be prepared by Dr E, at the expense of the parties.  They further provided for urine drug screen tests to be undertaken. 

5. The outcome of those orders was that the report of Dr E is not available to the court, as there has not been payment to him for the release of his report; there has been no updated urine screens provided or assessed. 

6. Otherwise, there was some level of contact between father and daughter at that contact centre.  That proved to be somewhat unsuccessful and that information is provided to the court in the mother's recent affidavit.  The end result seems to be that as of approximately February 2008 the father, of his own choosing, elected not to further attend or spend any time with the child.  Evidently he told the staff at the contact centre that "he was giving up". 

7. The mother, through her solicitor, advises the court that she does not know of the whereabouts of the father, he has not seen the child or had any contact with the mother for approximately 11 months.  In all of these circumstances and in the best interests of the child, a level of finality is required. 

8. The Senior Registrar had subsequently, on 11 March 2008, dismissed all interim applications but referred the final application, the children and parenting orders, to a trial notice list; and it was on that list that the matters were referred by a registrar to my court this day. 

9. What is abundantly clear in this case is that the child must live with the mother, who should have responsibility for all day‑to‑day and long‑term decisions of and concerning her welfare and upbringing. 

10. I will reserve any time to be spent by the father with the child, but he must understand that his relationship with his daughter is dependent upon him making a real and concerted effort to establish a relationship in proper manner and in a way that is in the best interests of the child, particularly having regard to her lack of knowledge and relationship with her father and the past absences that he has had from her life.

11. I have been provided with a minute of order submitted on behalf of the mother.  The Independent Children's Lawyer agrees with those orders, and in all of the circumstances I regard them as appropriate. 

12. I am mindful that the father has failed to attend court on earlier occasions.  I have read the file and the previous references from the court or the Registrar as to his non‑attendance.  I am satisfied to make orders in his absence, particularly given his communication to the independent staff of the contact centre that he would not pursue any further matter, and, significantly, that for the past 11 months has not sought to have contact with or ring or have any relationship with his daughter.  That is a sad occurrence, but clearly the ball is in his court for further meaningful action.

13. For those brief reasons, which I will have transcribed and made available to the parties, I will pronounce the final orders. 

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: