Maskins and Telsby

[2007] FamCA 1709

FAMILY COURT OF AUSTRALIA

MASKINS & TELSBY [2007] FamCA 1709

FAMILY LAW – CHILDREN – Parenting orders made continuing supervised time with child – Mother not appearing – Father, independent children’s lawyer and report writer supporting continuation of supervised time

Family Law Act 1975 (Cth)

APPLICANT: Mr Maskins

RESPONDENT: Ms Telsby

INDEPENDENT CHILDREN’S LAWYER: Peter Lynch

FILE NUMBER: MLF 2533 of 2005

DATE DELIVERED: 7 June 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Watt J

HEARING DATE: 7 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms D Manova

SOLICITOR FOR THE APPLICANT: H E P Steel

COUNSEL FOR THE RESPONDENT: No appearance by or on behalf of the respondent

SOLICITOR FOR THE RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms B C Melita

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Peter Lynch

Orders

AND UPON THE UNDERTAKING of Ms V given viva voce by telephone to the Court that:

A.She will continue to supervise the child’s time with the mother pursuant to these Orders until excused from so doing;

B.She will ensure at all times that the child is safe and suspend the child¹s time with the mother in the event that she considers it is unsafe for the child; and

C.She will take appropriate steps to inform the father and/or the relevant authorities in the event that she has concerns for the child’s safety, or has cause to suspend the child’s time with the mother.

WHICH UNDERTAKING THE COURT ACCEPTS

IT IS ORDERED BY CONSENT AS BETWEEN THE FATHER AND THE INDEPENDENT CHILDREN¹S LAWYER THAT:

1. I grant leave to the father to proceed on an undefended basis.

2. All previous parenting Orders be discharged.

3. Pursuant to S 61DA of the Family Law Act 1975 the parties have equal shared parental responsibility for the child, E born … February 2000 (“the child”).

4. The child live with the father.

5. The child spend time with the Mother from 12:00 noon until 4:00pm every second Saturday commencing on Saturday 30 June 2007.

6. The Mother telephone the father or Mr D to notify either of them as to whether she is able to spend time with the child, by 8.00pm on the Sunday preceding each Saturday on which she could spend time with the child in accordance with this Order, and advise the father or Mr D whether she will be attending the following Saturday.

AND THE COURT NOTES THAT

(a)This requires the mother to give such notice by 8.00pm on Sunday 24^th June 2007, in respect of the first period; and

(b)     The telephone numbers for the father and Mr D are as follows:

(i)       The father:  …

(ii)Mr D:  …

1. The father be at liberty not to provide the child in the event that the father or Mr D have not received notice pursuant to paragraph 6 of this Order.

2. The child spend further time with the mother as agreed between the parties from time to time.

3. The mother’s time with the child be supervised by Ms V;

4. In the event that such time spent as set out in paragraph 5 herein does not fit in with the father’s time spent with his child M, he shall give the mother and Ms V 7 days prior notice of any required changes to the arrangements.

5. The parties be and are hereby restrained from removing the child from the State of Victoria without the consent of the other, provided that consent not be unreasonably withheld by the mother for requests concerning holidays and extra curricular activities outside Victoria.

6. Each party notify the other of any medication or hospitalisation that the child may require from time to time.

7. The mother pay to the father $35.00 petrol money in advance of each alternate occasion in which the mother spends time with the child, commencing with the first occasion, and on each alternate occasion thereafter.

8. Changeovers to facilitate the time spent be at the residence of Ms V and the father may nominate an alternate driver to deliver and collect the child for changeovers from time to time at his discretion.

9. The mother be and is hereby restrained from causing or permitting Mr R to have any contact with the child.

10. The father cause his solicitor to serve, forthwith, a sealed copy of these Orders upon the mother at the address nominated by the mother in the “Notice of Address for Service” filed by her on 4 April 2007, such address being …, H in the State of Victoria.

11. The Independent Children¹s Lawyer contact the mother by telephone to confirm that she has received this Order and to ensure that she understands the terms of this Order.

12. The appointment of the Independent Children¹s Lawyer be discharged this day.

13. All pending applications are otherwise dismissed and removed from the list of matters waiting finalisation.

14. Pursuant to s. 65DA(2) and s. 62B the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and the details of who can assist the parties to adjust and to comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

15. Pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2533 of 2005

MR MASKINS

Applicant

And

MS TELSBY  

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. In this matter the applicant is the father and the respondent is the mother.  They are the parents of the child E born in February 2000. The mother did not appear at this hearing and has not appeared on at least one earlier court date. 

2. I was satisfied by the evidence that was presented to me earlier today that it was an appropriate case to permit the father to proceed on an undefended basis and I have already made an order that permits him to do so.  Ms Manova of counsel appeared for the father. Ms Melita of counsel appeared for the independent children's lawyer. 

3. The father was born in June 1968 and the mother in March 1977.  It appears that the parties commenced cohabitation in 1997 and, as stated earlier, the child was born in February 2000.  The parties separated in about April 2001 and at that stage there was intervention by the Department of Human Services, as a result of which the child was placed in the father's custody.

4. There were numerous subsequent proceedings, the details of which I will not recite, but what remains is that the child has lived with the father since that time and has spent time with the mother from time to time pursuant to various court orders and agreements. 

5. The father's application that initiated proceedings in the Federal Magistrates Court was filed on 26 September 2002 and that was last amended by him in an amended application for final orders filed on 20 December 2006.  The mother's first response was filed 7 November 2002 and that was last amended on 29 January 2007. 

6. It is a consistent feature of the case that from the start of these proceedings the father has been seeking that the child reside with him and spend time with the mother.  The mother has sought that the child spend time with her.  The primary difference between the parties is the extent of the time to be spent with the mother and whether it should be supervised or not.

7. I have had the benefit of reading a number of reports in this matter prepared by Ms A.  Her first such report is dated 7 January 2003.  She prepared supplementary reports on 30 May 2003, 27 August 2003, 23 August 2004 and 27 April 2005.  She conducted interviews earlier this year with a view to preparing yet another updated report, but in fact an order that the mother provide one half of the costs of that most recent report was not complied with.  The mother did not make the payment and so Ms A was not prepared to provide the report in the circumstances.  She did, however, at the request of the independent children's lawyer, provide a letter by facsimile to the independent children's lawyer dated 5 June 2007 in which she sets out her recommendations.  She states that her recommendations remain similar to those that she has made previously, namely that the child remain with her father because he is able to provide a better daily routine and suitably protected care for the child in comparison with the mother.  Furthermore, he has ongoing extended family support and those people monitor the welfare of the child regularly.  She further comments that:

   There are many concerns regarding the mother such as unpredictability of lifestyle problems in her partnerships, difficulties in handling parenting duties towards her several children on a consistent and long-term basis, with limited personal capacity to provide stable parenting to [the child]. 

8. I have to interpose at this stage the evidence set out in those reports that I have identified provides ample evidence and substance to that statement that I have just read from Ms A's most recent letter:

   There are many concerns regarding the mother, such as unpredictability of lifestyles, problems in her partnerships, difficulties in handling parenting duties towards her several children on a consistent and long-term basis along with limited personal capacity to provide stable parenting to [the child].

9. She then goes on and says:

   The mother could continue, as she was at the time of the report interviews in March 2007, to spend regularly fortnightly supervised visits two to four hours with the child at the home of her natural father in [B] for the foreseeable future. The travel is shared between the parents. 

10. I had the benefit of evidence given by telephone by Ms V, the stepmother of the mother in this case, who has had a long involvement in providing supervision for time to be spent by the child with her mother.  Her evidence was that she is prepared to continuing doing this.  She would prefer to have at least notice on the Tuesday preceding each Saturday if a visit is going to take place because it enables her to take a day of overtime at work on the Saturday if there is no visit that is going to take place by the mother to the child that she must supervise, and in fact the orders as finally settled as between the father and the independent children's lawyer provide for seven days' notice.  That is my view is most appropriate in circumstances where someone is putting herself out significantly.

11. Ms V also indicated that she was prepared to give an undertaking to provide supervision and she did that; she gave that undertaking and it will appear at the commencement of the orders that I make.  She impressed me as someone who has a genuine concern for this child.  She described the somewhat irregular pattern of the mother's attendance to spend time with the child.  However, she was not in any way condemnatory of the mother.  She simply said that she continued to hold the view that this was an appropriate arrangement, that is, for the time the mother spends, to be supervised although she had at earlier times considered that maybe the mother could move to unsupervised time. As matters stand in the evidence before me now there is no doubt that until the mother comes before the court and demonstrates a significant turnaround in her attitudes towards parental responsibility, there will be little prospect of time to be spent with this child by her being on an unsupervised basis. 

12. So I have considered those reports.  I had oral evidence from not only Ms V the supervisor, but also from the natural mother of the mother who confirmed that her daughter still lives at the address that was given in an address for service that the mother filed with the court when she became unrepresented some months ago.  She said that she had seen the mother at that address just last Sunday, 3 June, and that at the present time - and she phrased it fairly cautiously - for the time being, three of the mother's children of other relationships are living with her, namely T, P and I.  Those three children appear to be living with the mother at present, and that has not always been the case by any manner of means.  It may be that this is a positive sign that the mother is accepting and managing the children with greater parental responsibility than in the past, but it is impossible for me to speculate about that.  As I say unless the mother comes before the court with substantial evidence of significantly changed aspects of her life, supervised time is likely to be what remains available to her in the long-term. 

13. It is important for the child that the mother continues that form of spending time with her daughter because it is also clear from the reports that the child benefits from that time.  Although the mother's response to the child appears to be somewhat lacking in warmth and spontaneity, there is no doubt that the child likes to see her mother and benefits from it and that the child would, I think, suffer greatly if in fact the mother withdrew totally from this little girl's life.

14. The father and his brother-in-law have both filed recent affidavits.  They both show that the father has the capacity to - as do the reports - continue caring for the child who has fared very well to date in the father's care.  He, the father, obviously has caring and concerned family members and ensures that the child continues to enjoy ongoing relationships, not only with members of his family, but also with members of the mother's family, including her natural mother and her stepmother, being the two who gave evidence as to various matters before me today.

15. The father's outline of case refers me to the relevant legislation which of course is Part VII as recently amended with effect from 1 July 2006, and the important decisions of the Full Court in Goode & Goode [2006] FamCA 1346 and Lunn & Carpenter [2007] FamCA 196, a decision of O'Ryan J decided in March 2007, both of which help to understand and apply the recently amended legislation to a particular case.

16. In this case the issues are fairly limited.  There is no suggestion that the parties should not retain equal joint parental responsibility.  That is an order that is put forward even in the absence of the mother.  That leads to a consideration of whether equal shared time would be appropriate or if that is not possible, significant and substantial time.  Neither of those is a possibility in this case as matters stand. 

17. The reports and the evidence make clear that the mother is not really able to sustain a consistent pattern of seeing the child for a few hours on a fortnightly basis and so consideration of equal shared time or significant and substantial time are just not considerations that are able to be seriously raised in this case.

18. The mother would like, of course, to proceed to unsupervised time with the child, but I have already stated that that is unlikely to occur until very cogent evidence is put before the court of a change in the mother's lifestyle and attitude to the responsibilities of parenthood. 

19. I consider that the child's best interests which, of course, is the overriding consideration that I must have regard to are not in any way to be determined by the child's wishes.  She is obviously happy with her father.  The report writer makes that clear.  The evidence of the father and his brother-in-law make that clear.  She lives in a loving environment and would no doubt want to stay there, but in fact her wishes at her age are not really a relevant matter. 

20. The other considerations all point, in so far as they are relevant, to a continuation of the present arrangements.  This is indeed what the family report writer has recommended, that is, that the child continue to live with her father and spend time with the mother and that it be supervised.  Indeed, that is what I am satisfied will advance the best interests of this child. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watt

Associate

Date: 2 May 2008