Massen & Sachs

[2021] FCCA 2147

FEDERAL CIRCUIT COURT OF AUSTRALIA

Massen & Sachs [2021] FCCA 2147

File number:	DNC 236 of 2017
Judgment of:	JUDGE YOUNG
Date of judgment:	4 August 2021
Catchwords:	FAMILY LAW – Parenting – concerning two children who are twelve and eleven years of age – where the children live with the father – where the children have had limited contact with the mother over a considerable period – where the mother has failed to take up the opportunity to re-establish the relationship with the children – Court not satisfied it is appropriate to make an order for telephone communication between the children and the mother.
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	9
Date of hearing:	4 August 2021
Place:	Darwin
Solicitor for the Applicant:	Ms Franklin of North Australian Aboriginal Family Legal Service
Solicitor for the Respondent:	Ms Gray of Grays Legal NT
Solicitor for the Independent Children's Lawyer:	Ms Romeo of Margaret Romeo Barrister & Solicitor

ORDERS

DNC 236 of 2017

BETWEEN:

MR MASSEN

Applicant

AND:

MR SACHS

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	4 AUGUST 2021

UPON NOTING:

A.The mother has relocated to Queensland and the orders she currently seeks will need to be amended to reflect that.

B.That the solicitor for the mother has withdrawn from these proceedings.

THE COURT ORDERS:

1.That the Independent Children’s Lawyer be permitted to attend the children’s school to speak to the children about their views and the father’s approval is not required for that purpose.

2.That order 1 of the orders made on 7 May 2021 is amended by addition of the following words after material “and the father is to pass any such letters or photographs to the children promptly after receiving them.”

3.That the matter be adjourned to 27 September 2021 at 2.15pm for further consideration.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is a parenting matter about two children, W, who is 12 years of age, and X, who is 11 years of age.  Their mother, Ms Massen, is an Aboriginal person and they are Aboriginal children.  As I understand it, their father is not an Aboriginal person.  The mother has had very little to do with the children over many years. On 22 October 2018 undefended orders were made including that the father have sole parental responsibility and that the children live with him.  As is customary in an undefended hearing order, there was a notation that the respondent could apply to the Court within a set time to be heard. 

2. Ms Massen recommenced proceedings on 21 January 2021 seeking time with these children. She says in her affidavit in support of that application that when the orders were made in 2018 she was using illicit drugs and was not effectively able to respond to the application.  The mother clearly has a history of illicit drug use and perhaps alcohol abuse.  It has been a central aspect of her life for some years it would appear.  Her current situation, however, is somewhat unclear.  She has recently relocated from Town B, Northern Territory to Queensland.  The children live with their father in Darwin so her relocation to Queensland is even more problematic for any attempt to re-establish a relationship between these children and their mother.

3. An order was made on 7 May 2021 as a first step in that process permitting the mother to write letters and send photos to the children.  The mother has not, since 7 May 2021, written to the children or provided any photographs.  There is no explanation for that as far as I am aware.  If this had occurred then it would have been appropriate to consider the next step which might be telephone contact.

4. Ms Franklin appears on a somewhat irregular basis for the mother as the mother appears to be in the process of transitioning her legal representation. As I said to Ms Franklin, this Court can provide a framework for children to re-establish a relationship with a parent and one of the two factors to be given the greatest weight in assessing the best interests of children is the benefit to the child of having a meaningful relationship with both parents.  The Court would ordinarily do all it could in circumstances like this to give an appropriate opportunity for a relationship to be re-established.  However, if a party, for whatever reason, is unable to take up that opportunity then there is probably not a great deal the Court can do. 

5. This matter was listed for an interim hearing in relation to telephone communication between the children and their mother. The mother has shown no commitment to writing a letter or sending photographs to the children. In the circumstances, I have no confidence that she would in fact keep up any commitment to re-establish a relationship with these children. 

6. The father criticises the mother for her instability and lack of commitment.  He says that it is unfair to the children for her to be attempting to be coming in and out of their lives.  I think there is something in that submission.  Be that as it may, where not even the first step has been taken by the mother to begin re-establishing a relationship with the children, I do not consider it appropriate to make an order for telephone communication at this time. 

7. However, Ms Romeo, the independent children’s lawyer, has made what I consider to be some sensible suggestions.  She wants to speak to the children. I propose to make an order that the independent children’s lawyer, Ms Romeo, be permitted to attend at the children’s school to speak to the children about their views. The father’s approval is not required for that purpose.

8. I note the mother has relocated to Queensland and the orders she seeks will need to be amended to reflect that. 

9. I will also make an order that Order 1 of the orders dated 7 May 2021 is amended by the addition of the following words after “material”:  “and the father is to pass any such letters or photographs to the children promptly after receiving them”.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       14 September 2021