Mallet & Vorster

[2008] FamCA 798

FAMILY COURT OF AUSTRALIA

MALLET & VORSTER [2008] FamCA 798

FAMILY LAW – CHILDREN – Interim children and time spent orders - Telephone link up - Father in prison - No current orders

Family Law Act 1975 (Cth)

APPLICANT: MR MALLET

RESPONDENT: MS VORSTER

FILE NUMBER: MLC 13475 of 2007

DATE DELIVERED: 19 SEPTEMBER 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 19 SEPTEMBER 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: MS BARWICK

SOLICITOR FOR THE RESPONDENT: CATHLEEN CORIDON LAWYERS

ORDERS

IT IS ORDERED:

1. THAT the application of the husband filed 19 May 2008 be dismissed.

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

3. THAT the initiating application filed by the husband on 19 June 2008 be dismissed.

IT IS NOTED

A.THAT the wife has advised the Court through her solicitor that any intended travel interstate is for the purposes of a holiday only but that she and the boys will hereafter remain living in the State of Victoria.

B.THAT the wife would propose to change the name of four (4) male children (“the boys”) so that they be known by the surname Vorster or otherwise by the surname Mallet-Vorster but she has, through her solicitor, indicated to the Court that she will not take any actions to change the surname without first notifying the husband and obtaining a Court Order in that regard.

C.THAT the husband is to be at liberty to file a fresh application seeking appropriate orders in respect of any time that he should spend with the boys and in respect of their surname provided it is accompanied by a detailed affidavit.

D.THAT the dismissal of the husband’s initiating application is not to be taken as a final hearing of the orders sought by him therein.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13475 of 2007

MR MALLET

Applicant

And

MS VORSTER

Respondent

REASONS FOR JUDGMENT

1. The matter of Mallet v Vorster is before me in the Judicial Duty List.  Ms Barwick appears for the respondent mother, who is in court.  The father is presently in custody at the Melbourne Remand Centre, and on very short notice a telephone mention has been arranged and the court was able to ring through and contact the father, and there has therefore been a limited telephone hearing on an interlocutory basis.

2. The application before the court was made by the father on 19 May 2008.  He therein seeks orders to have contact with his four biological sons and foreshadows a joint custody application upon his release from imprisonment.  In support of that application he filed an affidavit that highlights his desire to appeal out of time against the orders made by Senior Registrar FitzGibbon on 11 March 2008.  Thereafter, I have read the contents of his affidavit and the issues and complaints made therein, and in particular his comments directed towards the Department of Human Services.

3. The Senior Registrar provided brief extempore reasons.  I observe that the father was not at court and was not heard on that occasion.  The orders made then are final orders and provide for other four boys, X, N, S and T, to live with the wife; and she was to have sole parental responsibility for all decisions, both long‑term and day‑to‑day, for the children.  Specifically, it was ordered that their father have no written, verbal or face‑to‑face contact with the children.  On that basis, all extant applications were dismissed.

4. I have before me the response that was filed by the mother on 5 June 2008, wherein she sought the dismissal of the father's application.  In support there is a substantial affidavit filed 5 June 2008.  The affidavit sets out the history of the relationship and marriage of the children, and of the past criminal proceedings and the matters proven against the husband and for which he is now imprisoned.  The one document that was particularly highlighted to me by Ms Barwick is exhibit 8, and that is the undertaking given by the mother to the Department to ensure that there is no ongoing visitational or telephone contact between the children and father.  That document was dated 30 August 2007 and of course was before the Senior Registrar.

5. Otherwise, there are very considerable documents in evidence and annexed to that affidavit by way of psychological and sociological reports on and concerning the children and all of the past issues that have arisen in their life. 

6. The current position is that the mother wholly opposes any contact.  Indeed, in discussions that arose today a suggestion was made by the father for the provision of a current photograph of the boys or school reports, but that has been wholly rejected. 

7. The father is endeavouring to obtain Legal Aid.  I make no judgment on whether it is appropriate or whether he will likely succeed in a formal application for Legal Aid.  I do understand that he has recently had a firm of solicitors acting on his behalf.  They have presented documents to the court today, and indeed requested this electronic communication hearing, though that was done not in accordance with the rules and out of time.

8. There is a prior notice of Victorian Legal Aid filed 7 March 2008 ceasing to act, and of recent days I understand the former solicitors, Rigoli and Associates, have now ceased to act for the husband. 

9. The current circumstance is that the husband desires to proceed afresh and on a new application and on proper material filed to obtain a period of time with the four boys.  He has indicated to me in this telephone hearing that some telephone time may suffice, together with the required photograph of the boys.  I make no finding on that issue; I am not hearing that case today.

10. The first matter that I deal with is the extant application seeking effectively to review the decision of the Senior Registrar.  It is out of time and it does not sufficiently provide any indication of what ongoing orders or time spent is sought by the husband, and otherwise the affidavit is largely unhelpful.  I propose as a matter of procedure to dismiss that application.

11. The husband is and always will remain the natural father of these boys.  He has indicated that Legal Aid is close to accepting his application, or he is working through a firm of solicitors and now perhaps a different firm of solicitors to obtain Legal Aid.  Even without Legal Aid, he must meaningfully prepare an application setting out any time spent that is in the best interests of the children and which he would accept during the period of his incarceration. 

12. There is of course no guarantee that any order will be made, because it is the interests of the children both individually and within their family environment that is important. In that regard, the court would have to carefully examine - and I say this for the benefit of the husband - the provisions of sections 60CA, 65E and 60CC of the Family Law Act 1975, because it is those primary and additional considerations that highlight the matters to be investigated and to determine whether it is in the best interests of the boys that there be any order made for them to have any form of contact, however minimal that may be, with their father.

13. The task for the father therefore is to obtain Legal Aid and otherwise himself to file afresh an appropriate application and meaningful and helpful affidavit in support.  I carefully make no adverse comment upon any future hearing.  I do however take this opportunity to stress to the father that he must reflect upon and consider the professional reports and medical and psychological documents that are attached to the wife's affidavit of 5 June of this year and which hereafter may be updated.

14. Likewise, the wife relies upon the Department of Human Services and their very blunt assessment of the needs to the children, which are to have no contact or relationship with the father at least whilst he is imprisoned. 

15. There does need to be some regularity brought to this case.  The current application of 19 May 2008 of the father will be dismissed.  I will however have these reasons transcribed and sent to the parties.  I very, very clearly say to the father as he listens by telephone that any future application he makes will be assessed on the benefit and best interests of the children and not himself, and he must have prior regard to that fact in what he prepares and submits to the court as the basis for any further order.

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

………………………………………………………..
Associate:  Annette King